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HomeMy WebLinkAbout09-2422ark • &ORK COUNTY PROTHONOW 0 Page 1 of 3 3/27/2009 2009-FC-000311-02 ADAMS JOSEPH C vs. ADAMS KATHERINE C OMaa C!y r I Action 03/25/2009 BACKGROUND AND ORDER DIRECTING CASE BE 04096 3 TRANSFERED TO CUMBERLAND CO PROTHY BY THE CT JOHN W THOMPSON JR JUDGE 03/25/2009 NOTICE GIVEN RE: PA R. C. P. 236 MAILED TO ATTY 04089 2 HOWETT ON 3-25-09 @3PM FAXED TO ATTY O'SHEA ON 3-25-09 @2:12PM 03/25/2009 DEFT'S MOTION FOR RECUSAL & APPOINTMENT OF 04672 5 VISITING JUDGE W/CERT OF SVC 03/25/2009 CORRESPONDENCE FROM ATTY HOWETT TO JUDGE 04705 1 THOMPSON 03/19/2009 BRIEF IN SUPPORT OF PLTFS PRELIMINARY 04171 7 OBJECTIONS TO DEFTS REPLY TO PLTFS MOTION TO DISMISS DEFTS COUNTERCLAIM TO COMPLAINT IN DIVORCE WITH CERTIFICATE OF SERVICE 03/18/2009 PLTF'S PRELIMINARY OBJECTIONS TO DEFT'S REPLY 04052 6 TO PLTF'S MOTION TO DISMISS DEFT'S COUNTERCLAIM TO COMPLAINT IN DIVORCE W/CERT OF SVC 03/17/2009 PLTF'S ANSWER TO DEFT'S PRELIMINARY 04107 5 OBJECTIONS TO PLTF'S PRELIMINARY OBJECTIONS TO DEFT'S COUNTER- CLAIM TO COMPLAINT IN DIVORCE W/CERT OF SVC 03/16/2009 DEFTS BRIEF IN SUPPORT OF PRELIMINARY 04053 11 OBJECTIONS RE:VALIDITY OF AGREEMENT W/CERT OF SERVICE 03/12/2009 VERIFICATION SUBMITTED TO DEFTS PRELIMINARY 05251 3 OBJECTIONS TO PLTFS PRELIMINARY OBJECTIONS COUNTERCLAIM TO COMPLAINT IN DIVORCE 03111/2000 PLTFS ANSWFR TO r EFTS PRELIMINARY 04057 5 OBJECTIONS TO PLTFS PETITION RAISING ADDITIONAL CLAIMS UNDER THE DIVORCE CODE W/CERT OF SERVICE 03/11/2009 PLTFS ANSWER TO DEFTS MOTION TO DISMISS 04944 5 PLTFS PETITION RAISING ADDITIONAL CLAIMS UNDER THE DIVORCE CODE W/CERT OF SERVICE JOSEPH C. ADAMS, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 09-2422 CIVIL TERM .KATHERINE C. ADAMS, CIVIL ACTION - LAW Defendant IN DIVORCE ORDER OF COURT AND NOW, this 20th day of July, 2009, after brief hearing, and having heard argument, the Defendant's Motion to Disqualify Counsel is DENIED. We note that the denial is based upon the fact that the only issue currently bef`.ore the Court is the validity of the marital settlement agreemer.~t, and the Defendant's counsel has conceded that there is no information obtained by Plaintiff's counsel's law firm that would be relevant to that issue. This decision is without prejudice to re-file in the event that the agreement is set aside. However, we would want much more concrete evidence with regard to information that would be used to the disadvantage of the former client before we would be inclined to exercise our discretion to disqualify counsel and the firm. ~omas D. O'Shea, Esqui Attorney for Plaintiff ~ohn C. Howett, Jr., Esc Attorney for Defendant srs ~3~~PY71 #E'~~~~vT`~ri ~.~'~' ~'~ -~r yY~J`Jtl~ ,~ ,..;, s ~o~ w~ zz ~~r ~aoz 1~~°av~i.~;~ 3!-kt ~ ~~~~~ ark • FORK COUNTY PROTHONOTfff 9 Page 2 of 3 3/27/2009 2009-FC-000311-02 ADAMS JOSEPH C vs. ADAMS KATHERINE C Action 03/06/2009 DEFTS MOTION TO DISMISS PLTFS PETITION 04824 6 RAISING ADDITIONAL CLAIMS UNDER THE DIVORCE CODE W/CERT OF SERVICE 03/06/2009 CERTIFICATE OF SERVICE OF NOTICE PURSUANT TO 04025 1 LOCAL RULE 208.3(A) 03/06/2009 DEFTS MOTION FOR RECUSAL AND APPOINTMENT 04672 5 OF VISITING JUDGE W/CERT OF SERVICE 03/06/2009 BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS 04171 11 AND MOTION TO STRIKE W/CERT OF SERVICE 03/06/2009 DEFTS REPLY TO PLTFS MOTION TO DISMISS DEFTS 04714 4 COUNTERCLAIM TO COMPLAINT IN DIVORCE W/CERT OF SERVICE 03/06/2009 DEFTS PRELIMINARY OBJECTIONS TO PLTFS 04052 5 PETITION RAISING ADDITIONAL CLAIMS UNDER THE DIVORCE CODE W/CERT OF SERVICE 03/06/2009 DEFTS PRELIMINARY OBJECTIONS TO PLTFS 4 PRELIMINARY OBJECTIONS TO DEFTS COUNTERCLAIM TO COMPLAINT IN DIVORCE W/CERT OF SERVICE 02/27/2009 MOTION TO DISMISS DFT'S COUNTERCLAIM W/CERT 04824 13 OF SERVICE 02/23/2009 ORDER TRANSFERRING CASE TO YORK CO HON 03003 2 RICHARD A MASSON PRES JUDGE CAMERON COUNTY 02/23/2009 DOCKET ENTRIES FROM CAMERON COUNTY 06941 1 02/23/2009 PETITION RAISING QUESTION OF VENUE AND 04532 4 SEEKING TRANSFER OF ACTION TO YORK COUNTY W/CERT OF SVC 02/23/2009 COMPLAINT IN DIVORCE 02005 5 02/23/2009 ACCEPTANCE OF SERVICE OF PLTFS COMPLAINT 06930 1 FOR DIVORCE BY DEFT KATHERINE C ADAMS ON 10/09/2008 02/23/2009 ANSWER AND COUNTERCLAIM TO PLTFS 04377 6 COMPLAINT IN DIVORCE W/CERT OF SVC 02/23/2009 PRELIMINARY OBJECTIONS TO DEFTS 05472 12 COUNTERCLAIM TO PLTFS COMPLAINT IN DIVORCE W/CERT OF SVC ark C OORK COUNTY PROTHONOT* 40 Page 3 of 3 3/27/2009 2009-FC-000311-02 ADAMS JOSEPH C vs. ADAMS KATHERINE C Action 02/23/2009 PETITION FOR RELATED CLAIMS UNDER DIVORCE 04607 4 CODE W/CERT OF SVC Party Name D- ADAMS KATHERINE C P- ADAMS JOSEPH C Atty Name HOWETT, JOHN C JR O'SHEA, THOMAS D Total Number of Pages : 137 of the Court of Common Pleas of lvnn a this t _r D. 2fi 01 Pamela S, Lee, Prothonotary • E IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA JOSEPH C. ADAMS NO. 2009-FC-000311-02 V. KATHERINE C. ADAMS BACKGROUND - i., C-D Before the Court is the Motion by Katherine C. Adams, Defendant, seeking recusal of all Judges sitting in York County. While recusal in most every instance is an individual decision, given Plaintiff's status as a sitting commissioned Judge of the 19th Judicial District, we agree with Defendant's argument that to avoid even the appearance of impropriety requires recusal of all Judges in the same judicial district. Defendant further argues that every support conference officer, each divorce master or any custody hearing officer likewise should be excused from hearing this case and therefore requested the appointment of an out-of-county Judge to hear each, every and any issue that may be presented in this case. While we agree that there are extensions of the Court, i.e. divorce masters, support officers that should be excused from hearing this case, I would disagree that an out of county Judge should be appointed. We think that would result in excessive delays and is not the most efficient methodology to address is domestic case. ' We believe it more efficient and to the parties benefit to move the case to another county where it may proceed within the procedures available to any domestic case as opposed to a piecemeal resolution by an assigned Judge hearing single issues (for example support) as each issue may arise. Accordingly, we will enter an Order directing this case be transferred to another county by Order which follows. ORDER AND NOW, to wit, this 241r day of March 2009, upon consideration of Defendant's Motion for Recusal of all sitting Judges in York County, the same is GRANTED. Further, we ORDER and DIRECT the Prothonotary of York County to transmit the original of all documents presently filed to the Prothonotary of Cumberland County together with a copy of this Order as certified. The Prothonotary is further directed to serve a copy of this Order and attached discussion on counsel. Transmission of the record filings to date to the Prothonotary of Cumberland County shall be done within seven (7) days. We pause to note Plaintiff attempted to avoid proceedings in York County by filing his divorce action in another county. Defendant was successful in objecting to that venue and in having the case returned to York County. • Finally, it is ORDERED and DIRECTED all new filings after that date shall be made in Cumberland County. Any costs are to be paid equally by the parties. So Ordered. BY THE COURT, h . Thompson, Jr J ge CERTIFIED from the records of the Clo?rtof Common Nis of York County, Pennsylvania thisQAIt of 01 0& Pamela S. Lee, Prothonotary • LAW OFFICES OF HOWETT, KISSINGER & HOLST, P.C. 130 WALNUT STREET POST OFFICE BOX 810 JOHN C. HOWETT, JR. HARRISBURG, PENNSYLVANIA 17108 DONALD T. KISSINGER DARREN J. HOLST REBECCA McCLINCY DARR DEBRA M. SHIMP Legal Assistant March 16, 2009 The Honorable John W. Thompson, Jr. YORK COUNTY COURTHOUSE 45 North George Street York, PA 17401 Re: Adams v. Adams No. 2009-FC-000311-02 Dear Judge Thompson: When we appeared before you on March 11, 2009 to address the Motion for Recusal filed by me on behalf of Kate Adams you indicated that you would hold this matter in abeyance for ten days (which expires on Friday, March 20, 2009) in order to allow counsel for the parties to explore the possibility of transferring this case to a new county or initiating a new action in another county. I spoke with Tom O'Shea today, and he authorized me to write this letter to you and advise you that Mr. O'Shea is not willing to transfer this matter to another county or to initiate an action in another county. Accordingly, I must request that you render a decision on our recusal motion. Sinc rely, John C. Howett, Jr. (717) 234-2616 FAX (717) 234-5402 -:3 ?. a 71 ?- t-, O JCH/dms cc: Thomas D. O'Shea, Esquire Katherine C. Adams k-+ (1) !'? ) 013-06-'09 12;46 FROM- 7172345402 • T-832 P005/011 F-883 TN THE COURT OF COMMON PLEAS OF YORK: COUNTY, PENNSYLVANIA JOSEPH C. ADAMS, Plaintiff ) V. ) KATHERINE C. ADAMS, ) Defendant ) NO. 2009-FC-0003 1 1-02 CIVIL ACTION - LA'W' IN DIVORCE DEFENDANT'S MO11ON FOR RECUSAL AND APPOINTMENT OF L4S11ING JUDGE AND NOW, comes Defendant, Katherine C. Adams, by and through her counsel, Howett, Kissinger & Hoist, P.C., who hereby files the instant Motion for Recusal and Appointment of Visiting Judge and in support thereof avers as follows: 1. Movant is Katherine C. Adams ("'Wife"), Defendant in the above- ?- U1 r captioned divorce action, who resides at 2127 Maple Crest Boulevard, York, York County, Pennsylvania 17406. 2. Respondent is Joseph C. Adams ("Husband"), Plaintiff in the above- captioned divorce action, who resides at 1323 Wicklow Drive, York, York County, Pennsylvania 17406. 3. Wife and Husband were married on August 8, 1992 in York, Pennsylvania. 4. On October 6, 2008, Husband filed a divorce action in the Cameron County Court of Common; Pleas, docketed at 2008-2141 ?k4 u! ?P g ?.3 ?i IN) 03-06-'09 12;46 FROM-H t 71,72345402 T-832 P006/011 F-883 5. On January 5, 2009, Wife objected to venue in Cameron County, and on February 6, 2009, President Judge Richard A. Masson signed an order (which was then docketed on February 17, 2009) transferring the matter to the York County Court of Common Pleas, in which the matter was docketed at 2009-F'C-0003 1 1-02. 6. On February 23, 2009, Wife filed an Answer and Counterclaim in Divorce, raising claims for equitable distribution, alimony pendente lite, and counsel fees, as well as continued maintenance of life and health insurance pending entry of a decree in divorce. 7. Also on that date, Husband filed Preliminary Objections to Wife's Counterclaim in Divorce, asserting that Wife is in breach of a Property Settlement Agreement which settled all economic issues surrounding the divorce. On February 27, 2009, Husband filed a Motion to Dismiss Defendant's Counterclaim on the basis of the aforesaid Agreement. 8. At this procedural juncture, judicial involvement will be necessary to resolve Plaintiff's Preliminary Objections and Motion to Dismiss Defendant's Counterclaim. 9. Due to the fact that Husband is a commissioned judge with the York County Court of Common Pleas, any participation in these proceedings by the York County bench and the York County Divorce Masters office, support hearing officers, or custody masters would present, at a minimum, an appearance of impropriety and prejudicial conflict of interest to Wife's detriment. Wife asserts that this Honorable Court should recuse itself from any further involvement in this case, 10. Moreover, Wife avers that all York County divorce masters or support or custody hearing officers, who must regularly have their reports and recommendations reviewed by Husband, must also be recused. g'.a f,d 7;,72345402 T-832 P007/011 46 FROM-1] tt 0 0 WHEREFORE, Wife respectfully requests that this Honorable Court enter an order recusing the York County bench, and all associated support service agencies, in the above- referenced matter and that this Court request the Administrative Office of Pennsylvania Courts to assign a visiting judge to handle all matters associated with the instant case. Respectfully submitted, Date: .ohn oKIwett, J ., Esq ETT, SSINGER & HOLST, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams 9 Na' 6 -IOb-' O 1'L: 47 I rHU M-Hjft + , 71 2345402 • T-832 P008/011 F-883 VERIFICATIOY 1, Katherine C. Adams, hereby swear and affim1 that the facts contained in the foregoing Defendant's Motion For Recusal And Appointment of Visiting Judgere true and correct to the best of my knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unworn falsification to authorities. Date: March 5, 2009 ?`r(.lfT fYj4L,1~L' KATHERINE C. ADAMS y'dI Ul ?.* 1'61 0) n? ?.o J' ,w 03-06-'09 12;47 FROM-HIs t , , 71,72345402 0 T-832 P009/011 F-883 IN THE COURT OF CO&fMON PLEAS OF YORK COUNTY, PEN`NS"YLVANIA JOSEPH C. ADAMS, ) Plaintiff ) NO. 2009-FC-0003 1 1-02 f KATHERINE C. ADAMS, ) CIVIL ACTION - LAW Defendant ) IN DIVORCE CERTIFICA E OF SERVICE I, John C. Howett, Jr., Esquire, counsel for Katherine C. Adams, Defendant in the above- captioned action, hereby certify that a true and correct copy of the foregoing Defendant's Motion for Recusal and Appointment of Visiting Judge was served upon Thomas D. O'Shea, Esquire, counsel for Joseph C. Adams, Plaintiff, via facsimile and by depositing same in the United States mail, first class, on March 5, 2009, addressed as follows: Thomas D. O'Shea, Esquire CGA LAW FIRM 135 North George Street York, PA 17401-1132 Date: . Howett, Jr., Es e HOWETT, KISSINGER & HOLST, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams !?a Qjl 0'?,J • • IN THE COURT OF COMMOM PLEAS OF YORK COUNTY. PENNSYLVANIA JOSEPH C. ADAMS, NO.2009-FC-000311-02 Plaintiff ; V. CIVIL ACTION - LAW KATHERINE C. ADAMS, DIVORCE Defendant c.? PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S REPLY TO PLAINTIFF'S MOTION TO DISMISS DEFENDANT'S COUNTERCLAIM TO COMPLAINT IN DIVORCE AND NOW, comes Plaintiff, Joseph C. Adams, by and through his attorney, Thomas D. O'Shea, Esquire, CGA Law Firm, P.C. and files the within Preliminary Objections to Defendant's Reply to Plaintiff's Motion to Dismiss Defendant's Counterclaim to Complaint in Divorce and avers as follows: 1. On October 6, 2008, Husband filed a no-fault divorce action in the Cameron County Court of Common Pleas, Pennsylvania docketed at 2008-2143. Wife agreed to the filing of the action in Cameron County and signed an Acceptance of Service on October 9, 2008. 2. On January 5, 2009, Wife filed an objection to venue in Cameron County, Pennsylvania. 1-01 I'D b ll- ` I On February 6, 2009, President Judge Richard A. Masson entered an Order transferring the matter to the York County Court of Common Pleas. Said Order was docketed in Cameron County on February 17, 2009. 4. On February 23, 2009, Wife filed an Answer and Counterclaim in Divorce raising claims for equitable distribution, alimony pendente lite, counsel fees and continued maintenance of life and health insurance. 5. On February 27, 2009, Husband filed a Motion to Dismiss Wife's Counterclaim as all issues raised in the Counterclaim were addressed in the parties' Separation and Property Settlement Agreement dated October 9, 2009. 6. Wife filed an answer to the motion in the form of a Reply to Plaintiff's Motion to Dismiss on March 6, 2009. 7. Wife's Reply alleges that the Separation and Property Settlement Agreement "is invalid in that it was procured under duress and is fraudulent for lack of full and fair disclsoure.." [sic] 8. Pennsylvania Rule of Civil Procedure 1028(a) provides as follows: Preliminary objections may be filed by any party to any pleading and are limited to the following grounds: (1) lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue or improper form or service of a writ of summons or a complaint; @?? ?.?? ??? ,? ,"! ??, • • (2) failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter; (3) insufficient specificity in a pleading; (4) legal insufficiency of a pleading (demurrrer); (5) lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action; (6) pendency of a prior action or agreement for alternative dispute resolution; (7) failure to exercise or exhaust a statutory remedy, and (8) full, complete and adequate non-statutory remedy at law. 9. Wife's Reply violates the aforementioned rule in that Pennsylvania Rule of Civil Procedure 1019(b) requires that averments of fraud or mistake shall be averred with particularity. 10. In order to plead fraud with sufficient particularity, the pleadings must adequately explain the nature of the claim to the opposing party so as to permit the preparation of a defense, and the pleadings must be sufficient to convince the court that the averments are not merely subterfuge. Martin v. Lancaster Battery Co., Inc., 530 Pa. 11, 606 A.2d 4444,(1992). Facts which constitute fraud must be clearly and explicitly set out, so the court may judge whether act or representation complained of was fraudulent. Palone v. Muschetta, 387 Pa. 386,128 A.2d 37 (1956).. Undue influence as it relates to duress must also be plead with specificity. 0 ,: Ln 3 r <'"I\ p") 11. Wife has not explicitly set out her claim for fraud and duress. Wife has merely stated that the Agreement was entered into fraudulently and while under duress. This is insufficient under the rules. 12. Wife had the Agreement for approximately one week, made changes to the Agreement and contacted an attorney to review the Agreement and documentation on the parties' assets but refused to pay the $250 retainer fee. Husband is completely unaware of any fraud or duress as alleged by Wife and without more information, Husband is unable to prepare a defense to Wife's claims. WHEREFORE, Husband respectfully requests that this Honorable Court grant his Preliminary Objections to Defendant's Reply to Plaintiff's Motion to Dismiss Defendant's Counterclaim to Complaint in Divorce for failure to conform to law or rule of court and insufficient specificity in a pleading under Pa.R.C.P. 1028(a)(2) and (3). Respectfully submitted, CGA Law Firm By: Thomas D. O'Shea, Esq ire Supreme Court No. 34618 135 North George Street York, Pennsylvania 17401 Tel.: (717) 848-4900 Counsel for Plaintiff ??,? ?? „: ?`;? 0 '' 1? 0 VERIFICATION I, Joseph C. Adams, hereby swear and affirm that the facts contained in the foregoing Preliminary Objections to Defendant's Reply to Plaintiff's Motion to Dismiss Defendant's Counterclaim to Complaint in Divorce are true and correct to the best of my knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. DATE: 3' I FS' Oq kdams Qu- i-o 014 ?v 0 ?Y K) • CERTIFICATE OF SERVICE • I hereby certify that on this date a copy of the foregoing Plaintiff's Preliminary Objections to Defendant's Reply to Plaintiff's Motion to Dismiss Defendant's Counterclaim to Complaint in Divorce was served on counsel in the manner indicated below: FIRST-CLASS MAIL POSTAGE PREPAID THEREON ; ADDRESSED AS FOLLOWS: 6, -Z John C. Howett Jr Esquire , ., 130 Walnut Street P. O. Box 810 r.? Harrisburg, PA 17108 ' ., + w CGA Law Firm By:./ Thomas D. O'Shea, Esquire Dated: 31 ? sl u`? amp IN THE COURT OF COMMOM PLEAS OF YORK COUNTY. PENNSYLVANIA JOSEPH C. ADAMS, NO. 2009-FC-000311-02 Plaintiff v. t CIVIL ACTION - LAW C) _ KATHERINE C. ADAMS, DIVORCE Defendant - ., PLAINTIFF'S ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S COUNTERCLAIM TO COMPLAINT IN DIVORCE AND NOW, comes Plaintiff, Joseph C. Adams, by and through his counsel, Thomas D. O'Shea, CGA Law Firm, who hereby files the within Answer to Defendant's Preliminary Objections to Plaintiff's Preliminary Objections to Defendant's Counterclaim to Complaint in Divorce, and in support thereof answers as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. By way of further answer, Wife verbally agreed to have Husband file the divorce action in Cameron County. Wife then reneged on her agreement by filing an objection to venue on February 6, 2009. After Wife had the matter removed from Cameron County to York County, Wife has now requested that the entire York County Bench recuse themselves. 5. Admitted. II? 4afH? t?yo 1 6 w4? Pyf? i? a,p v a:?h 0 1 1 0 6. Admitted. 7. Admitted. 8. Paragraph 8 states a legal conclusion to which no response is required. 9. Paragraph 9 states a legal conclusion to which no response is required. By way of further Answer, The averments contained in Plaintiff's Preliminary Objections implicate Pennsylvania Rule of Civil Procedure 1028(a) (2), (4) and (5). 10. Paragraph 10 states a legal conclusion to which no response is required. 11. Paragraph 11 states a legal conclusion to which no response is required. By way of further answer, it is specifically denied that the Separation and Property Settlement Agreement was executed by Defendant as a result of fraud or duress. Moreover, Pennsylvania Rule of Civil Procedure 1019(b) requires that averments of fraud or mistake shall be averred with particularity. In order to plead fraud with sufficient particularity, the pleadings must adequately explain the nature of the claim to the opposing party so as to permit the preparation of a defense, and the pleadings must be sufficient to convince the court that the averments are not merely subterfuge. Martin v. Lancaster Battery Co., Inc., 530 Pa. 11, 606 A.2d 4444,(1992). Facts which constitute fraud must be clearly and explicitly set out, so the court may judge whether act or representation complained of was fraudulent. Palone v. Muschetta, 387 Pa. 386,128 A.2d 37 (1956).. Undue influence as it relates to duress must also be plead with specificity. Defendant has merely stated that the Agreement was entered into fraudulently and while under duress. Under the Pennsylvania Rules of Civil Procedure and accompanying case law, this is insufficient and must therefore be stricken LLfi r^, k'A r? WHEREFORE, Husband respectfully requests that this Honorable Court enter an Order dismissing Defendant's Preliminary Objections to Plaintiffs Preliminary Objections to Defendant's Counterclaim to Complaint in Divorce. Respectfully submitted, Th mas D. O'Shea, Esquire CGA Law Firm, P.C. 135 North George Street York, PA 17401 (717) 848-4900 Counsel for Plaintiff, Joseph C. Adams t" tA? 0 VERIFICATION I, Joseph C. Adams, hereby swear and affirm that the facts contained in the foregoing Answer to Defendant's Preliminary Objections to Plaintiffs Preliminary Objections to Defendant's Counterclaim to Complaint in Divorce are true and correct to the best of my knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. DATE: w.os? G dams k,4; h ?i rb "i F4 CERTIFICATE OF SERVICE I hereby certify that on this date a copy of the foregoing Answer to Defendant's Preliminary Objections to Plaintiffs Preliminary Objections to Defendant's Counterclaim to Complaint in Divorce was served on counsel in the manner indicated below: FIRST-CLASS MAIL POSTAGE PREPAID THEREON ADDRESSED AS FOLLOWS: .LL? John C. Howett, Jr., Esquire M ti.7 130 Walnut Street o =-' P. O. Box 810 -niz r- v Harrisburg, PA 17108 N CGA Law Firm By: \?. ?4 ?) Thomas D. 'Shea, Esquire Dated: -31 1-1 1 oe? 0 0;at, ul ryi ?q#q u?A kli, 11 John C. Howett, Jr., Esquire HOWETT, KISSINGER & HOLST, P.C. 130 Walnut Street, P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams • IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA JOSEPH C. ADAMS, Plaintiff V. KATHERINE C. ADAMS, Defendant NO. 2009-FC-000311-02 CIVIL ACTION - LAW IN DIVORCE N C= M x5. :-7V N w rv PRAECIPE FOR ATTACHMENT OF VERIFICATION TO DEFENDANT'g PRELIMINARY OBJECTIONS TO PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S COUNTERCLAIM TO COMPLAINT IN DIVORCE TO THE OFFICE OF PROTHONOTARY: Kindly attach the enclosed Verification to the Defendant's Preliminary Objections to Plaintiff s Preliminary Objections to Defendant's Counterclaim to Complaint in Divorce filed on March 6, 2009 by the law firm of Howett, Kissinger & Holst, P.C., as counsel for Katherine C. Adams, Defendant, in the above-referenced action. Date: Respectfully submitted, c Jo C. Howett, Jr., Esquire HOWETT, KISSINGER & HOLST, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams -y --j 0 tv, VERIFICATION I, Katherine C. Adams, hereby swear and affirm that the facts contained in the foregoing Praecipe for Attachment of Verification to Defendant's are true and Preliminary Ojbections to Plaintiff's Preliminary objections to Defendant's c @ t o $?s ?bf ed' Wffiffiion and belief and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Date: 3/11/09 Oth7w- KATHERINE C. ADAMS $--o (0 LAW OFFICES OF HOWETT, KISSINGER & HOLST, P.C. 130 WALNUT STREET POST OFFICE BOX 810 HARRISBURG, PENNSYLVANIA 17108 JOHN C. HOWETT, JR. DONALD T. KISSINGER DARREN J. HOLST REBECCA McCLINCY DARR DEBRA M. SHIMP Legal Assistant March 11, 2009 VIA FED EX Pamela Lee, Prothonotary YORK COUNTY COURTHOUSE 45 North George Street York, PA 17401 Dear Ms. Lee: (717) 234-2616 FAX (717) 234-5402 L PV CS Re: Adams v. Adams 0p, 2009-FC-000311-02 = No No . . = ca sv w ? Enclosed for filing in the above-referenced matter please find our Praecipe for Attachment of Verification to Defendant's Preliminary Objections to Plaintiff's Preliminary Objections to Defendant's Counterclaim to Complaint in Divorce. Please time-stamp the extra copy and return it in the enclosed envelope. Thank you for your assistance with this matter. Enclosures cc: Thomas D. O'Shea, Esquire (w/encl) Katherine C. Adams (w/encl) h) • IN THE COURT OF COMMOM PLEAS OF YORK COUNTY. PENNSYLVANIA JOSEPH C. ADAMS, Plaintiff V. KATHERINE C. ADAMS, Defendant w° NO.2009-FC-000311-02 z ?i -< ° c n - ? - ? x rn CIVIL ACTION - LAW DIVORCES N r PLAINTIFF'S ANSWER TO DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S PETITION RAISING ADDITIONAL CLAIMS UNDER THE DIVORCE CODE AND NOW, comes Plaintiff, Joseph C. Adams, by and through his counsel, Thomas D. O'Shea, CGA Law Firm, who hereby files the within Answer to Defendant's Preliminary Objections to Plaintiff's Petition Raising Additional Claims under the Divorce Code, and in support thereof answers as follows: 1. Admitted. 2. Admitted. 3. Admitted. 0 QD LN N P,l 4. Admitted. By way of further answer, Wife verbally agreed to have Husband file the divorce action in Cameron County. Wife then reneged on her agreement by filing an objection to venue in Cameron County on January 5, 2009. The case was then transferred to York County on February 6, 2009. 5. Admitted. 6. Admitted. 7. Paragraph 7 states a legal conclusion to which no response is required. By way of further Answer, 23 Pa.C.S.A. §3301(e) is not applicable to the instant action as the Court is not in a position to grant a divorce under §3301(c) because neither party has filed an affidavit of consent as required under the statute. Nor is the Court in a position to grant a divorce under §3301(d) because the parties have not been separated for two years. Thus a hearing is required on the fault grounds. 8. Paragraph 8 states a legal conclusion to which no response is required. By way of further Answer, both cases cited by Wife are factually inapposite to the instant matter. In both cases cited, the Court was in a position to immediately grant a divorce under the two year no fault divorce statute. Thus it was not necessary for the Court to consider marital fault. The parties in this matter will not be separated the required two years until October 2010. 9. Paragraph 9 states a legal conclusion to which no response is required. By way of further answer, the Court is not in a position to grant a divorce because neither party has executed an affidavit of consent and the parties have not been separated two years. 0 to /OIN N.) • 1 10. Paragraph 10 states a legal conclusion to which no response is required. By way of further answer the case law and statute advanced by Wife support Husband's position that the Court must hold a hearing on the fault grounds alleged in Husband's petition. WHEREFORE, Husband respectfully requests that this Honorable Court enter an Order dismissing Defendant's Preliminary Objections Plaintiff's Petition Raising Additional Claims under the Divorce Code. Respectfully submitted, CGA Law Firm a: By: fhomas D. -O'Shea, Esquire Supreme Court No. 34618 135 North George Street York, Pennsylvania 17401 Tel.: (717) 848-4900 ?,?? ,°* {'"'*a VERIFICATION I, the undersigned, Joseph C. Adams, hereby affirm that the facts contained in the foregoing Answer to Defendant's Preliminary Objections to Plaintiffs Petition Raising Additional Claims Under the Divorce Code are true and correct to the best of my knowledge, information, and belief. This statement is made subject to the penalties of 18 Pa.C.S. § 4904 relating to unworn falsification to authorities. Dated: W&I Q , 2009 /, . 4, C. 0J, . 05 C. Adams t€? Ld ?'4 a m 1,,?j • • CERTIFICATE OF SERVICE I hereby certify that on this date a copy of the foregoing Answer to Defendant's Preliminary Objections to Plaintiff's Petition Raising Additional Claims Under the Divorce Code was served on counsel in the manner indicated below: FIRST-CLASS MAIL POSTAGE PREPAID THEREON ADDRESSED AS FOLLOWS: ca =. C-) 3 ` John C. Howett, Jr., Esquire -<C ©:I -- ^ri 130 Walnut Street x= C P. O. Box 810 -c? C s c Harrisburg, PA 17108 pa x rn CGA Law Firm By: ?. Y-5, Q?? ?0 Thomas D. O'Shea, Esquire Dated: 3 l \ 4 U e? LN N ,,-IN • CD IN THE COURT OF COMMOM PLEAS OF YORK COUNTY. PENNSYLV ANI =*t l? ? 0C CD . r. 1*: JOSEPH C. ADAMS, ? NO.2009-FC-000311-02 Plaintiff CO Z CIVIL ACTION - LAW ° K. KATHERINE C. ADAMS, DIVORCE Defendant , PLAINTIFF'S ANSWER TO DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S PETITION RAISING ADDITIONAL CLAIMS UNDER THE DIVORCE CODE AND NOW, comes Plaintiff, Joseph C. Adams, by and through his counsel, Thomas D. O'Shea, CGA Law Firm, who hereby files the within Answer to Defendant's Motion to Dismiss Plaintiff's Petition Raising Additional Claims under the Divorce Code, and in support thereof answers as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 0 PV 6. Denied. Husband presented a Separation and Property Settlement Agreement to Wife on or about October 2, 2008 after both parties had reviewed their marital assets together and reached a mutual agreement on the division thereof. Wife reviewed said Agreement during the following weekend and requested revisions to the document. Husband made the requested changes, signed the document and provided it to Wife on October 6, 2008. Sometime during this period Wife contacted an attorney to review the document but she did not want to pay the $250 consult fee. Wife executed the document on October 9, 2009, outside the presence of Husband. 7. Admitted. By way of further answer, Wife verbally agreed to have Husband file the divorce action in Cameron County. Wife then reneged on her agreement by filing an objection to venue on February 6, 2009. 8. Admitted. 9. Admitted. 10. Paragraph 10 states a legal conclusion to which no response is required. By way of further Answer, 23 Pa.C.S.A. §3301(e) is not applicable to the instant action as the Court is not in a position to grant a divorce under §3301(c) because neither party has filed an affidavit of consent as required under the statute. Nor is the Court in a position to grant a divorce under §3301(d) because the parties have not been separated for two years. 11. Paragraph 11 states a legal conclusion to which no response is required. By way of further Answer, both cases cited by Wife are factually inapposite to the instant matter. LN N N"ll In both cases cited, the Court was in a position to immediately grant a divorce under the two year no fault divorce. Thus it was not necessary for the Court to consider marital fault. The parties in this matter will not be separated the required two years until October 2010. 12. Paragraph 12 states a legal conclusion to which no response is required. By way of further answer, the Court is not in a position to grant a divorce because neither party has executed an affidavit of consent and the parties have not been separated two years. 13. Paragraph 13 states a legal conclusion to which no response is required. By way of further answer the case law and statute advanced by Wife support Husband's position that the Court should hold a hearing on the fault grounds alleged in Husband's petition. WHEREFORE, Husband respectfully requests that this Honorable Court enter an Order dismissing Defendant's Motion to Dismiss Plaintiff's Petition Raising Additional Claims under the Divorce Code. Respectfully submitted, CGA Law Firm By: omas D. O'Shea, Esquire Supreme Court No. 34618 135 North George Street York, Pennsylvania 17401 Tel.: (717) 848-4900 N VERIFICATION I, Joseph C. Adams, hereby swear and affirm that the facts contained in the foregoing ANSWER TO DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S PETITION RAISING ADDITIONAL CLAIMS UNDER THE DIVORCE CODE are true and correct to the best of my knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. DATE: ftAIZ?'1 10t Z001 c aL o C. Adams (W 1-4 r"! CERTIFICATE OF SERVICE I hereby certify that on this date a copy of the foregoing Answer to Defendant's Motion to Dismiss Plaintiff's Petition Raising Additional Claims Under the Divorce Code was served on counsel in the manner indicated below: FIRST-CLASS MAIL POSTAGE PREPAID THEREON ADDRESSED AS FOLLOWS: John C. Howett, Jr., Esquire 130 Walnut Street P. O. Box 810 Harrisburg, PA 17108 C7 ? O 3a. s? CGA Law Firm CD T am. S ? r7 Q v 'y ?y By: Y, Fri ' CD ?U Thomas D. Shea, Esquire Dated: 3'\ A,00\ LN N V) p%M IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA JOSEPH C. ADAMS, Plaintiff ) NO. 2009-FC-000311-02 V. ) KATHERINE C. ADAMS, ) CIVIL ACTION - LAW Defendant ) IN DIVORCE DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S COUNTERCLAIM TO COMPLAINT IN DIVORCE AND NOW, comes Defendant, Katherine C. Adams, by and through her counsel, Howett, Kissinger & Hoist, P.C., who hereby files the instant Preliminary Objections to `tip y Ceti Plaintiffs Petition Raising Additional Claims Under the Divorce Code, and in support thereq r`? avers as follows: : . 1. Movant is Katherine C. Adams ("Wife"), the above-named Defendant. 2. Respondent is Joseph Adams ("Husband"), the above-named Plaintiff. 3. On October 6, 2008, Husband filed a no-fault divorce action in the Cameron County Court of Common Pleas, docketed at 2008-2143, alleging irretrievable breakdown of the marriage pursuant to Section 3301(c) of the Divorce Code. 4. On January 5, 2009, Wife objected to venue in Cameron County, and on February 6, 2009, President Judge Richard A. Masson signed an order (which was then docketed on February 17, 2009) transferring the matter to the York County Court of Common Pleas, where the matter was docketed at 2009-FC-000311-02. ?K) rl) Q1 f4? 1..,4 .• • On February 23, 2009, Wife filed an Answer and Counterclaim in Divorce, admitting an irretrievable breakdown of the marriage pursuant to Section 3301(c) of the Divorce Code, and raising additional claims for equitable distribution, alimony pendente lite, and counsel fees, as well as continued maintenance of life and health insurance pending entry of a decree in divorce. 6. Also on that date, Husband filed two separate pleadings: (a) a Petition for Related Claims under Divorce Code, and (b) Preliminary Objections to Wife's Counterclaim. 7. Husband's Preliminary Objections to Wife's Counterclaim to his original divorce complaint requested that Wife's Counterclaim for equitable distribution, alimony pendente lite, counsel fees, and other relief be dismissed because she is in breach of a Property Settlement Agreement, dated October 9, 2008, which resolved all economic issues attendant to the divorce. 8. Rule 1028(a) of the Pennsylvania Rules of Civil Procedure provides: Preliminary objections may be filed by any party to any pleading and are limited to the following grounds: (1) lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue or improper form or service of a writ of summons or a complaint; (2) failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter; (3) insufficient specificity in a pleading; (4) legal insufficiency of a pleading (demurrer); (5) lack of capacity to sue, nonjoinder of a necessary parry or misjoinder of a cause of action; ?u Q1 ,j U4 'M • (6) pendency of a prior action or agreement for alternative dispute resolution; (7) failure to exercise or exhaust a statutory remedy, and (8) full, complete and adequate non-statutory remedy at law. 9. In the case sub judice, Husband's Preliminary Objections do not comply with the above-quoted provision of the Pennsylvania Rules of Civil Procedure, as promulgated by the Pennsylvania Supreme Court, because they do not raise any of the enumerated grounds for the filing of same. 10. Therefore, Husband's preliminary objections are a legal nullity, and should be stricken from any further consideration by this or any court. 11. In the alternative, Wife avers that the Property Settlement Agreement upon which Husband relies is invalid because it was executed by her as a result of fraud and duress, and therefore, pursuant to Pa.R.C.P. 1028(c)(2), Wife requests that this Honorable Court make factual findings and conclusions of law as to the validity of said agreement. WHEREFORE, Wife respectfully requests this Honorable Court grant her Preliminary Objections to Husband's Preliminary Objections for failure to conform to law or rule of court under Pa.R.C.P. 1028(a)(2). Date: ? ?f Lo f Respectfully submitted, e Jo . Howett, Jr., Es uire WETT, KISSINGER & HOLST, P.C. 130 Walnut Street, P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams tp:;7 1 wl?? tw Ul t.b14 IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA JOSEPH C. ADAMS, Plaintiff ) V. ) KATHERINE C. ADAMS, ) Defendant ) NO. 2009-FC-000311-02 CIVIL ACTION - LAW IN DIVORCE CERTIFICATE OF SERVICE I, John C. Howett, Jr., Esquire, counsel for Katherine C. Adams, Defendant in the above- captioned action, hereby certify that a true and correct copy of the foregoing Defendant's Preliminary Objections to Plaintiff's Preliminary Objections to Defendant's Counterclaim to Complaint in Divorce was served upon Thomas D. O'Shea, Esquire, counsel for Joseph C. Adams, Plaintiff, via facsimile and by depositing same in the United States mail, first class, on March 5, 2009, addressed as follows: CD ,. Thomas D. O'Shea, Esquire CGA LAW FIRM 135 North George Street York, PA 17401-1132 ` Date: D ,hn C owett, Jr., Esq re H ETT, KISSINGER & HOLST, P.C. 130 Walnut Street, P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams t f CA r; a w i i, a? k+ k? All, "I Ij 0 0 IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA JOSEPH C. ADAMS, Plaintiff ) V. ) KATHERINE C. ADAMS, ) Defendant ) NO. 2009-FC-000311-02 CIVIL ACTION - LAW IN DIVORCE DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S PETITION RAISING ADDITIONAL CLAIMS UNDER THE DIVORCE CODE AND NOW, comes Defendant, Katherine C. Adams, by and through her counsel, Howett, Kissinger & Holst, P.C., who hereby files the instant Preliminary Objections to Plaintiff's Petition Raising Additional Claims Under the Divorce Code, and in support thereof'. avers as follows : 1 the above-named Defendan?''c _ Movant is Katherine C. Adams ("Wife") -„ . , 2. Respondent is Joseph Adams ("Husband"), the above-named Plaintiff. - ' 3. On October 6, 2008, Husband filed a no-fault divorce action in the Cameron County Court of Common Pleas, docketed at 2008-2143, alleging irretrievable breakdown of the marriage pursuant to Section 3301(c) of the Divorce Code. 4. On January 5, 2009, Wife objected to venue in Cameron County, and on February 6, 2009, President Judge Richard A. Masson signed an order (which was then docketed on February 17, 2009) transferring the matter to the York County Court of Common Pleas, where the matter was docketed at 2009-FC-0003 1 1-02. ^- C, te'. Rr fst s.? 1 5. On February 23, 2009, Wife filed an Answer and Counterclaim in Divorce, admitting an irretrievable breakdown of the marriage pursuant to Section 3301(c) of the Divorce Code, and raising additional claims for equitable distribution, alimony pendente lite, and counsel fees, as well as continued maintenance of life and health insurance pending entry of a decree in divorce. 6. Also on that date, Husband filed a Petition for Related Claims under the Divorce Code in which he raised additional bases for divorce, including Indignities, pursuant to Section 3301(a)(6), and Adultery, pursuant to Section 3301(a)(2). 7. The Divorce Code, 23 Pa.C.S.A. Section 3301(e), clearly provides that: "[i]f grounds for divorce alleged in the complaint or counterclaim are established under subsection (c) or (d), the court shall grant a divorce without requiring a hearing on any other grounds." (Emphasis added). 8. The courts of this Commonwealth have repeatedly held that where grounds for a no-fault divorce have been established, there is no need for a court to delve into any consideration of marital fault. In fact, "...with the passage of no-fault divorce in 1980, `[t]he vindication of private rights or the punishment of matrimonial wrongs' is expressly proscribed by the Divorce Code's legislative findings and intent." Rich v. Acrivos, Pa.Super. , 815 A.2d 1106, 1109 (2003), quoting Perlberger v. Perlberger, 426 Pa.Super. 245, 626 A.2d 1186, 1195 (1993), appeal denied, 536 Pa. 628, 637 A.2d 289 (1993). 9. Here, Husband's Complaint, and Wife's Answer and Counterclaim establish grounds for divorce under the Divorce Code, to wit: irretrievable breakdown. 2 till 01 11? ?1l /I'-- 134 r? c: 10. Therefore, pursuant to the Divorce Code, and relevant case law, the additional bases for divorce advanced by Husband in his Petition for Related Claims under the Divorce Code are a legal nullity. WHEREFORE, Wife respectfully requests this Honorable Court grant her Preliminary Objections to Husband's Petition for Related Claims under the Divorce Code. Respectfully submitted, Date: 41 ohn . Howett, Jr., Esquire TT, KISSINGER & HOLST, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams Ike xyl ID I$) 51'} iA 0 0. IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA JOSEPH C. ADAMS, ) Plaintiff ) V. ) KATHERINE C. ADAMS, ) Defendant ) NO. 2009-FC-000311-02 CIVIL ACTION - LAW IN DIVORCE CERTIFICATE OF SERVICE I, John C. Howett, Jr., Esquire, counsel for Katherine C. Adams, Defendant in the above- captioned action, hereby certify that a true and correct copy of the foregoing Defendant's Preliminary Objections to Plaintiff's Petition Rasing Additional Claims under the Divorce Code was served upon Thomas D. O'Shea, Esquire, counsel for Joseph C. Adams, Plaintiff, via facsimile and by depositing same in the United States mail, first class, on March 5, 2009, addressed as follows: Thomas D. O'Shea, Esquire CGA LAW FIRM 135 North George Street York, PA 17401-1132 rv .. Date: Jo owett, Jr., Esq ' HOWETT, KISSINGER & HOLST, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams r"...`: i w?? ?z? ?`? ? E;? I?? ?a? ??? i ?,,? i;;? ?;:;?F a?i? i?+? r? Cl? ;;'? FEW fy++A i?rT r.9 ?r??? s • LAW OFFICES OF HOWETT, KISSINGER & HOLST, P.C. 130 WALNUT STREET POST OFFICE BOX 810 HARRISBURG, PENNSYLVANIA 17108 JOHN C. HOWETT, JR. DONALD T. KISSINGER DARREN J. HOLST REBECCA McCLINCY DARR DEBRA M. SHIMP Legal Assistant March 5, 2009 VIA FED EX Pamela Lee, Prothonotary YORK COUNTY COURTHOUSE 45 North George Street York, PA 17401 Re: Adams v. Adams No. 2009-FC-000311-02 Dear Ms. Lee: (717) 234-2616 FAX (717) 234-5402 Enclosed for filing in the above-referenced matter please find the following documents: 1. Defendant's Reply to Plaintiff s Motion to Dismiss Defendant's Counterclaim to Complaint in Divorce; and 2. Defendant's Preliminary Objections to Plaintiff's Petition Raising Additional Claims Under the Divorce Code; 3. Defendant's Preliminary Objections to Plaintiff s Preliminary Objections to Defendant's Counterclaim to Complaint in Divorce. Please file the originals of the above pleadings, time-stamp the copies and return them in the enclosed envelope. Thank you very much for your kind attention to these matters. Sincerely, %XD John C. Howett, Jr. JCH/dms ' Enclosures cc: Thomas D. O'Shea, Esquire (w/encls-via fax & mail) Katherine C. Adams (w/encls) r i? QV) r? 1,14 IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA JOSEPH C. ADAMS, Plaintiff ) V. ) KATHERINE C. ADAMS, ) Defendant ) NO. 2009-FC-000311-02 CIVIL ACTION - LAW IN DIVORCE DEFENDANT'S REPLY TO PLAINTIFF'S MOTION TO DISMISS DEFENDANT'S COUNTERCLAIM TO COMPLAINT IN DIVORCE AND NOW, comes Defendant, Katherine C. Adams, by and through her counsel, Howett, Kissinger & Holst, P.C., who hereby files the instant Reply to Plaintiff's Motion to Dismiss Defendant's Counterclaim to Complaint in Divorce, and in support thereof avers as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. CD -^ C. 6. Defendant avers that the pleaded Agreement is invalid in that it was procured under duress and is fraudulent for lack of full and fair disclsoure.. 7. Denied for the reasons stated in Paragraph 6 above. 8. The allegation of breach of contract is a conclusion of law which requires no response. Defendant denies that Plaintiff is entitled to an award of legal fees. 0 C) Q 'I LA WHEREFORE, Defendant respectfully requests this Honorable Court to dismiss Plaintiff s Motion to Dismiss Defendant's Counterclaim to Complaint in Divorce. Respectfully submitted, Date: t- /eA (1 o . Howett, Jr., 're HOWETT, KISSINGER & HOLST, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams iY t ?! 1s„? zP? t«? 114 0 .0 IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA JOSEPH C. ADAMS, Plaintiff V. KATHERINE C. ADAMS, Defendant NO. 2009-FC-000311-02 CIVIL ACTION - LAW IN DIVORCE CERTIFICATE OF SERVICE I, John C. Howett, Jr., Esquire, counsel for Katherine C. Adams, Defendant in the above- captioned action, hereby certify that a true and correct copy of the foregoing Defendant's Reply to Plaintiff s Motion to Dismiss Defendant's Counterclaim was served upon Thomas D. O'Shea, Esquire, counsel for Joseph C. Adams, Plaintiff, via facsimile and by depositing same in the United States mail, first class, on March 5, 2009, addressed as follows: Thomas D. O'Shea, Esquire CGA LAW FIRM 135 North George Street York, PA 17401-1132 Date: 3 j 149 T) Howett, Jr., Esquire lohrrt. } HOWETT, KISSINGER & HOLST, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams a tl`'s 4,A 0 a LAW OFFICES OF HOWETT, KISSINGER & HOLST, P.C. JOHN C. HOWETT, JR. DONALD T. KISSINGER DARREN J. HOLST REBECCA McCLINCY DARR DEBRA M. SHIMP Legal Assistant VIA FAX (771-3252) & FED EX Pamela Lee, Prothonotary YORK COUNTY COURTHOUSE 45 North George Street York, PA 17401 130 WALNUT STREET POST OFFICE BOX 810 HARRISBURG, PENNSYLVANIA 17108 March 5, 2009 Re: Adams v. Adams No. 2009-FC-000311-02 Dear Ms. Lee: (717) 234-2616 FAX (717) 234-5402 Enclosed please find an original and four copies of a Motion for Recusal in the above- referenced case. Please file the original, time-stamp the copies and return them in the enclosed envelope. Pursuant to Rule 208.3(a) of the York County Rules of Court, please find a Certification of Notice regarding the Motion for Recusal. Finally, please find a Praecipe to List the Motion for One Judge Disposition at the Family Court session scheduled for Wednesday, March 11, 2009. Thank you very much for your kind attention to these matters. Sincerel , c,(y? John C. Howett, Jr. JCH/dms Enclosures cc: Terry Baker, Family Court Administrator (w/encls-via fax 771-9911) Thomas D. O'Shea, Esquire (w/encls-via fax & mail) Katherine C. Adams (w/encls) t~.J 01 ) c,n Cn ll? (w'a SF.a! ST? i sF`* y=? C4i? fi Pty t.l.'A IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA JOSEPH C. ADAMS, Plaintiff V. KATHERINE C. ADAMS, Defendant NO. 2009-FC-000311-02 } CIVIL ACTION - LAW IN DIVORCE t r- DEFENDANT'S MOTION FOR RECUSAL AND APPOINTMENT OF VISITING JUDGE r AND NOW, comes Defendant, Katherine C. Adams, by and through her counsel, Howett, Kissinger & Holst, P.C., who hereby files the instant Motion for Recusal and Appointment of Visiting Judge and in support thereof avers as follows: 1. Movant is Katherine C. Adams ("Wife"), Defendant in the above- captioned divorce action, who resides at 2127 Maple Crest Boulevard, York, York County, Pennsylvania 17406. 2. Respondent is Joseph C. Adams ("Husband"), Plaintiff in the above- captioned divorce action, who resides at 1323 Wicklow Drive, York, York County, Pennsylvania 17406. 3. Wife and Husband were married on August 8, 1992 in York, Pennsylvania. 4. On October 6, 2008, Husband filed a divorce action in the Cameron s rv c.r+ County Court of Common Pleas, docketed at 2008-2143. C) 1 irk Q1 W k' l 0 0 5. On January 5, 2009, Wife objected to venue in Cameron County, and on February 6, 2009, President Judge Richard A. Masson signed an order (which was then docketed on February 17, 2009) transferring the matter to the York County Court of Common Pleas, in which the matter was docketed at 2009-FC-000311-02. 6. On February 23, 2009, Wife filed an Answer and Counterclaim in Divorce, raising claims for equitable distribution, alimony pendente lite, and counsel fees, as well as continued maintenance of life and health insurance pending entry of a decree in divorce. 7. Also on that date, Husband filed Preliminary Objections to Wife's Counterclaim in Divorce, asserting that Wife is in breach of a Property Settlement Agreement which settled all economic issues surrounding the divorce. On February 27, 2009, Husband filed a Motion to Dismiss Defendant's Counterclaim on the basis of the aforesaid Agreement. 8. At this procedural juncture, judicial involvement will be necessary to resolve Plaintiff's Preliminary Objections and Motion to Dismiss Defendant's Counterclaim. 9. Due to the fact that Husband is a commissioned judge with the York County Court of Common Pleas, any participation in these proceedings by the York County bench and the York County Divorce Masters office, support hearing officers, or custody masters would present, at a minimum, an appearance of impropriety and prejudicial conflict of interest to Wife's detriment. Wife asserts that this Honorable Court should recuse itself from any further involvement in this case. 10. Moreover, Wife avers that all York County divorce masters or support or custody hearing officers, who must regularly have their reports and recommendations reviewed by Husband, must also be recused. la:? tµ U4 ? 0 0 WHEREFORE, Wife respectfully requests that this Honorable Court enter an order recusing the York County bench, and all associated support service agencies, in the above- referenced matter and that this Court request the Administrative Office of Pennsylvania Courts to assign a visiting judge to handle all matters associated with the instant case. Respectfully submitted, Date: S'ohn owett, J ., Esq . /,Yl THONVETT, KISSINGER & HOLST, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams i t l? tt'J44?8 tl" Qt VERIFICATION I, Katherine C. Adams, hereby swear and affirm that the facts contained in the foregoing Defendant's Motion For Recusal And Appointment of Visiting 3udgare true and correct to the best of my knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unworn falsification to authorities. Date: March 5, 2009 0, l l/V? KATHERINE C. ADAMS ,,--- ,, Ott 4a? tv? iji a'? 0 1-1 .. .0 IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA JOSEPH C. ADAMS, ) Plaintiff ) V. ) KATHERINE C. ADAMS, ) Defendant ) NO. 2009-FC-000311-02 CIVIL ACTION - LAW IN DIVORCE CERTIFICATE OF SERVICE I, John C. Howett, Jr., Esquire, counsel for Katherine C. Adams, Defendant in the above- captioned action, hereby certify that a true and correct copy of the foregoing Defendant's Motion for Recusal and Appointment of Visiting Judge was served upon Thomas D. O'Shea, Esquire, counsel for Joseph C. Adams, Plaintiff, via facsimile and by depositing same in the United States mail, first class, on March 5, 2009, addressed as follows: Thomas D. O'Shea, Esquire CGA LAW FIRM 135 North George Street York, PA 17401-1132 Date: D? Howett, Jr., Es e HOWETT, KISSINGER & HOLST, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams a C) 4 F? f n? I-A • John C. Howett, Jr., Esquire HOWETT, KISSINGER & HOLST, P.C. 130 Walnut Street, P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA JOSEPH C. ADAMS, Plaintiff NO. 2009-FC-000311-02 CIVIL ACTION - LAW IN DIVORCE rv_ N V. KATHERINE C. ADAMS, Defendant CERTIFICATION OF NOTICE PURSUANT TO LOCAL RULE 208.3(a) AND NOW comes Defendant, Katherine C. Adams, by and through her counsel, Howett, Kissinger & Holst, P.C., who hereby certifies that she gave proper notice, under York County Rule of Procedure 208.3(a), of her intention to present her Motion for Recusal and Appointment of Visiting Judge at the Family Court business session scheduled for Wednesday, March 11, 2009. Date: s' Respectfully submitted, Howett, Jr., quire HOWETT, KISSINGER & HOLST, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams C; rn +'? t?? t'? ??:`? t,;? '.? i?? '•, ?{ Swd? ??'33?**?? idX ? ,6 ,4 ,?? 's1? `,',? ^; ?:? ?? ?h?`$ • IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA JOSEPH C. ADAMS, ) Friday, March 6, 2009,2:56 PM Plaintiff ) NO. 2009-F C-000311-15 V. ) KATHERINE C. ADAMS, ) CIVIL ACTION - LAW Defendant ) IN DIVORCE DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S PETITION RAISING ADDITIONAL CLAIMS UNDER THE DIVORCE CODE r-a -) .a AND NOW, comes Defendant, Katherine C. Adams, by and through her counsel, Howett, Kissinger & Hoist, P.C., who hereby files the instant Motion To Dismiss Plaintifr,, ° Petition Raising Additional Claims Under the Divorce Code, and in support thereof avers 26 cn follows: 1. Movant is Katherine C. Adams ("Wife"), the above-named Defendant. 2. Respondent is Joseph Adams ("Husband"), the above-named Plaintiff. 3. Movant and Respondent were married on August 8, 1992 in York, Pennsylvania. 4. Husband is a commissioned judge serving on the York County Court of Common Pleas. 5. On October 6, 2008, Husband filed a no-fault divorce action in the Cameron County Court of Common Pleas, docketed at 2008-2143, alleging irretrievable breakdown of the marriage pursuant to Section 3301(c) of the Divorce Code. 6. On October 9, 2008, Husband presented a Separation and Property Agreement to Wife which she executed at his request without legal counsel. • • 7. On January 5, 2009, Wife filed a counseled objection to venue in Cameron County, and on February 6, 2009, President Judge Richard A. Masson signed an order (which was then docketed on February 17, 2009) transferring the matter to the York County Court of Common Pleas, where the matter was docketed at 2009-FC-000311-02. On February 23, 2009, Wife filed an Answer and Counterclaim in Divorce, admitting an irretrievable breakdown of the marriage pursuant to Section 3301(c) of the Divorce Code, and raising additional claims for equitable distribution, alimony pendente lite, and counsel fees, as well as continued maintenance of life and health insurance pending entry of a decree in divorce. 9. On that same date, Husband filed a Petition for Related Claims under the Divorce Code in which he raised additional bases for divorce, including Indignities, pursuant to Section 3301(a)(6), and Adultery, pursuant to Section 3301(a)(2). 10. The Divorce Code, 23 Pa.C.S.A. Section 3301(e), clearly provides that: "[i]f grounds for divorce alleged in the complaint or counterclaim are established under subsection (c) or (d), the court shall grant a divorce without requiring a hearing on any other grounds." (Emphasis added). 11. The courts of this Commonwealth have repeatedly held that where grounds for a no-fault divorce have been established, a court is not permitted to consider marital fault. In fact, "...with the passage of no-fault divorce in 1980, `[t]he vindication of private rights or the punishment of matrimonial wrongs' is expressly proscribed by the Divorce Code's legislative findings and intent." Rich v. Acrivos, Pa.Super. , 815 A.2d 1106, 2 • • 1109 (2003), quoting Perlberger v. Perlberger, 426 Pa. Super. 245, 626 A.2d 1186, 1195 (1993), appeal denied, 536 Pa. 628, 637 A.2d 289 (1993). 12. Here, Husband's Complaint, and Wife's Answer and Counterclaim establish grounds for divorce under the Divorce Code, to wit: irretrievable breakdown of the marriage. 13. Therefore, pursuant to the Divorce Code, and relevant case law, the additional bases for divorce advanced by Husband in his Petition for Related Claims under the Divorce Code are a legal nullity such that said Petition should be dismissed. WHEREFORE, Wife respectfully requests that this Honorable Court dismiss Plaintiff s Petition Raising Additional Claims under the Divorce Code be dismissed. Respectfully submitted, Date: c J&. Howett, Jr., E uire HOWETT, KISSINGER & HOLST, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams • VERIFICATION • I, Katherine C. Adams, hereby swear and affirm that the facts contained in the foregoing Defendant's motion to Dismiss Plaintiff's Petition Raising Additional Claims Under the Divorce Code are true and correct to the best of my knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Date: March 5, 2009; ?tY (51J1? KATHERINE C. ADAMS • • IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA JOSEPH C. ADAMS, Plaintiff ) V. ) KATHERINE C. ADAMS, ) Defendant ) NO. 2009-FC-000311-02 CIVIL ACTION - LAW IN DIVORCE CERTIFICATE OF SERVICE I, John C. Howett, Jr., Esquire, counsel for Katherine C. Adams, Defendant in the above- captioned action, hereby certify that a true and correct copy of the foregoing Defendant's Motion to Dismiss Plaintiffs Petition Rasing Additional Claims under the Divorce Code was served upon Thomas D. O'Shea, Esquire, counsel for Joseph C. Adams, Plaintiff, via facsimile and by depositing same in the United States mail, first class, on March 5, 2009, addressed as follows: Thomas D. O'Shea, Esquire CGA LAW FIRM - :..tea 135 North George Street York, PA 17401-1132 CD ? j Date: 3 i' John owett, Jr., Esquir cn OWETT, KISSINGER & HOLST, P.C. "' 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams • • LAW OFFICES OF HOWETT, KISSINGER & HOLST, P.C. 130 WALNUT STREET POST OFFICE BOX 810 HARRISBURG, PENNSYLVANIA 17108 JOHN C. HOWETT, JR. DONALD T. KISSINGER DARREN J. HOLST REBECCA McCLINCY DARR DEBRA M. SHIMP Legal Assistant Pamela Lee, Prothonotary YORK COUNTY COURTHOUSE 45 North George Street York, PA 17401 March 5, 2009 (717) 234-2616 FAX (717) 234-5402 r? Re: Adams v. Adams No. 2009-FC-000311-02 Dear Ms. Lee: Enclosed for filing in the above-referenced matter please find Defendant's Motion to Dismiss Plaintiff's Petition Raising Additional Claims Under the Divorce Code. Please note that although this is a motion which will require judicial action, we are not requesting that it be set down for a hearing at this time because we have a pending Motion for Recusal of the entire York County bench, which if granted, will require that this motion be held in abeyance until a visiting judge is appointed. If you should have any questions, please do not hesitate to contact our office. Please file the original, time-stamp the copies and return them in the enclosed envelope. Thank you very much for your kind attention to these matters. Sincerely, C? John C. Howett, Jr. JCH/dms Enclosure cc: Terry Baker, Family Court Administrator (w/encl) Thomas D. O'Shea, Esquire (w/encl-via fax & mail) Katherine C. Adams (w/encl) • JOSEPH C. ADAMS, Plaintiff VS. KATHERINE C. ADAMS, Defendant • : IN THE COURT OF COMMON PLEAS : OF YORK COUNTY, PENNSYLVANIA No. 2009-FC-00311-02 c, .n Action in Divorce C)"00 'V C3 G PLAINTIFF'S BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS AND MOTION TO STRIKE 1. PROCEDURAL HISTORY -,, f, X N == Plaintiff filed a Complaint for Divorce under section 3301(c) of the Divorce Code in the Court of Common Pleas of Cameron County, Pennsylvania on October 6, 2009. Both parties verbally agreed to have the Divorce Complaint filed in a county where there would be no local publicity as to the divorce action. On January 5, 2009, Defendant filed a Petition Raising Question of Venue and Seeking Transfer of the Action to York County. On February 6, 2009, Richard A. Masson, President Judge of the Court of Common Pleas of Cameron County entered an Order transferring the case to the Court of Common Pleas of York County. On February 17, 2009, Defendant filed an Answer and Counterclaim to Complaint in Divorce raising the issues of equitable distribution, alimony pendente lite, counsel fees, expenses and costs of suit, and continued maintenance and beneficiary designations of a? C.) 4s? r d15 ?rN+i? 0 -1. 0 existing policies insuring life and health of Defendant. On February 23, 2009, Plaintiff filed Preliminary Objections to Defendant's Counterclaim to Complaint in Divorce. On February 27, 2009 Plaintiff filed a Motion to Dismiss the economic issues filed by Wife due to the existence of a Separation and Property Settlement Agreement executed by both parties. 111. STATEMENT OF FACTS Plaintiff (Husband) and Defendant (Wife) were married on August 8, 1992. Testimony and evidence will show Husband first learned that Wife was having an affair on February 6, 2008. The parties attempted to work through Wife's issue of infidelity and Wife agreed that she would have no further contact with the other party. In the beginning of October 2008 the parties separated when Husband learned that Wife was continuing to have an affair. As a result thereof, Husband immediately informed Wife that she should consult an attorney. The parties both agreed to a divorce. The parties agreed to file the divorce action in Cameron County as both believed they could amicably resolve their economic issues and could prevent local publicity. The parties were able to reach an agreement on their economic issues. Husband prepared a Separation and Property Settlement Agreement in accordance with their discussions and presented it to Wife for her review and consideration. Wife reviewed the document and a few days later requested some changes to the terms of the agreement. Husband made the requested changes, signed the document and returned it to Wife. A short time thereafter, Wife informed Husband that she was 2 Cl) "7l) ?r? 0 .'' 0 going to have an attorney review it with her but that the attorney wanted a $250 consultation fee which she did not wish to pay. A few days later Wife signed the document outside the presence of Husband and returned it to Husband. Husband immediately provided Wife with a copy of the document. In reliance upon the agreement, Husband removed Wife's name from any liability on the marital residence, divided bank accounts, personal property and transferred title on the parties' vehicle. Wife purchased another residence in November 2009 and at Wife's request Husband signed a spousal waiver in order to allow Wife to purchase the residence. Husband signed the spousal waiver because all of the parties' economic issues were resolved by the Agreement. Testimony and evidence will also show that Husband and Wife both have bachelor degrees; both worked throughout the marriage; both parties were aware of all the marital assets; Wife maintained the bank statements and other financial records; most of the parties' assets were in joint names or in Wife's sole name and the parties filed joint tax returns throughout their marriage. In addition, the record will show that Wife met with her financial advisors to review her finances, without Husband present, less than two months before the execution of the agreement. 3 ?g 0 VIA r, seo 0 ... 0 III. QUESTION PRESENTED Whether Defendant's Counterclaim to Complaint in Divorce should be dismissed because the parties' have executed a Separation and Property Settlement Agreement which addresses all issues raised in the Counterclaim. Whether Defendant is obligated to pay Plaintiff's counsel fees for violating the terms of the Separation and Property Settlement Agreement. IV. ARGUMENT The determination of property rights through marital agreements has long been permitted, and, indeed, encouraged in Pennsylvania. Fishblate v. Fishblate, 238 Pa. 450, 86 A. 469 (1913). A property settlement agreement is enforceable by utilizing the same rules of law used in determining the validity of contracts. Lipschutz v. Lipschutz, 391 Pa. Super. 537, 571 A.2d 1046 (1990). The principles applicable to prenuptial agreements are equally applicable to postnuptial agreements. Stoner v. Stoner, 572 Pa. 665, 672 n. 5, 819 a.2d 529, 533 n. 5 (2003); Paroly v. Paroly, 876 A.2d 1061, 1063 (Pa. Super. 2005); Adams v. Adams, 414 Pa. Super. 634, 637, 607 A.2d 1116, 1118 (1992). Property settlement agreements incident to divorce or separation are generally presumed to be valid to the extent they do not contravene public policy by promoting divorce. Kay v. Kay, 460 Pa. 680, 334 A.2d 585 (1975); Laudig v. Laudig, 624 A.2d 651 (Pa. Super. 1993); Lurie v. 4 Lo J.o 0 f'y 0 r^,f' Lurie, 370 A.2d 739 (Pa. Super. 1976); Mormello v. Mormello, 682 A.2d 284 (Pa. Super. 1996). Agreements contravene public policy only when they are collusive. Lurie. Avoidance of the consequences of the financial aspects of the Divorce Code is a valid purpose for an agreement and such provisions do not contravene public policy. Laudig. The Pennsylvania Divorce Code also recognizes the validity of marital agreements. Section 3501 specifically provides that the definition of marital property does not include "property excluded by valid agreement of the parties entered into before, during or after marriage." 23 Pa.C.S.§3501(a)(2). See also: Karkaria v. Karkaria, 405 Pa.Super 176, 186, 592 A.2d 64, 69-70; Laudig v. Laudig, 425 Pa. Super. 228, 233 -234, 624 A.2d 651, 653 (1993). The parties have great latitude in structuring individual agreements and are free to enter into binding contracts with respect to property and support issues, even when it later appears that one of the parties made a very bad bargain. Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 (1990). The Court is not permitted to review the reasonableness of a marital settlement agreement to determine its validity. Paroly at 1065. "If parties viewed an agreement as reasonable at the time of its inception, as evidenced by their having signed the agreement, they should be foreclosed from later trying to evade its terms by asserting that it was not in fact reasonable." Simeone at 401, 581 A.2d at 166. Absent fraud, misrepresentation, or duress, spouses are bound by the terms of their agreements. Simeone at 399, 581 A.2d at 165. "If an agreement provides that full disclosure has been made, a presumption of full disclosure arises. If a spouse attempts to rebut this presumption through an assertion of fraud or misrepresentation 5 C) jrA a Tyy'.FFl?Xi ?yy J??1?1ea? A alit a N1? l.,pp ?i /'°``. 1,4 0 , -? . 0 then this presumption can be rebutted if it is proven by clear and convincing evidence." Id. At 402, 581 A.2d at 167. The terms of the Separation and Property Settlement Agreement at issue clearly indicate that full disclosure of the parties' assets and liabilities has been made. The Agreement states, in pertinent part: WHEREAS, Husband and Wife each acknowledge that he or she is fully cognizant of the assets, liabilities and general financial condition of the parties jointly and of each other individually, and both parties are of full and complete understanding that they have the right to seek the advice of separate legal counsel. 13 Right to Counsel. The parties declare that each has had a full and fair opportunity to obtain independent legal advice of counsel of his or her selection; both are cognizant of his/her right to legal representation; confirms that it is and has been his/her express, voluntary and knowing intention not to avail himself/herself of the right to counsel. Both further acknowledge that he/she chooses instead to represent himself/herself with respect to the preparation and execution of this Agreement. Both further declare that he/she is executing this Agreement freely and voluntarily, having obtained such knowledge and disclosure of the parties' respective assets, liabilities, legal rights and obligations and that both acknowledge that this Agreement is fair and equitable and is not the result of any fraud, coercion, duress, undue influence or collusion. 28 Financial Disclosure. The parties confirm that each has relied on substantial accuracy of the financial disclosures of the other as an inducement to the execution of this Agreement. Because the Agreement indicates that full disclosure has been made Wife must rebut this presumption by clear and convincing evidence to the contrary. Clear and Convincing evidence is 6 0 ?., a4, the highest standard in civil proceedings. Clear and convincing evidence has been defined as "evidence that is so clear and direct as to permit the trier of fact to reach a clear conviction, without hesitancy, as to the truth of the facts at issue." Sharon Steel Corporation v. Workmen's Compensation Appeal Board (Myers), 670 A.2d 1194, 1199 (Pa. Cmwlth.), petition for allowance of appeal denied, 544 Pa. 679, 678 A.2d 368 (1996). Simply put, Wife is unable to meet this heavy burden. Before the parties even prepared the Settlement Agreement they reviewed their respective assets together. The parties reviewed the most recent financial statements which were kept by Wife inside the marital residence. Both parties acknowledged that the most recent statements were probably higher than the actual values because of the down turn in the economy.' Wife had a complete set of the financial records as she stated her intention to have the documents reviewed by an attorney. Wife informed Husband that she had contacted an attorney but did not want to pay the $250 consultation fee. Moreover, Wife had met with her financial advisors less than two months before signing the Agreement to review her financial affairs. This was done outside the presence of Husband. Furthermore, the parties have always filed joint tax returns. In addition, the vast majority of the assets were either in joint names or in Wife's sole name. To say that Wife was unaware of the parties' relative financial position is absurd. Wife was in a better position than Husband to know the parties financial position as she could have 1 "Full and fair disclosure does not require the disclosure of the exact amount of his or her property." Hillegass Estate, 431 Pa. 144, 151, 244 A.2d 672, 676 (1968); McGonnon v. McGannon, 241 Pa. Super. 45, 359 A.2d 431, 435 (1976). 7 0 l w? w.? 1o easily contacted her financial advisors to update statements of the bank accounts and her trust. Wife is a college graduate and worked continuously outside the marital residence in a director's position. One of her previous positions required her to help acquire and review other persons' financial documents for admission into nursing homes. Wife had the Agreement for approximately one week and requested that changes be made to the Agreement before she signed it. It is Husband's position that Wife now seeks to have the Settlement Agreement rescinded because the majority of the assets that she received were in the form of stocks which have drastically decreased in value in recent months. Since moving out of the marital residence in November, Wife has repeatedly informed Husband that her stocks are down and as a result she would like more money from the marital residence. Wife has never indicated to Husband at any time since the signing of the document that she was unaware of the parties' assets. She maintained the files of all of the financial documents in the marital residence. Where circumstances indicate that a spouse has knowledge of the general value of the couple's assets, an agreement will be upheld, especially where the agreement recites that full and fair disclosure was made. Paroly v. Paroly, 876 A.2d 1061 (Pa. Super. 2005). "An agreement is valid even if it does not contain financial disclosure itself and can be upheld if it merely recites that such disclosure has been made." Id. at 1066. It is clear that Wife knew the general value of the parties' marital assets and had the accompanying documentation to review. She had the time and ability to meet with an attorney but chose not to do so. Wife cannot now rescind the 8 ;x Ul y. p 0 ... 0 Agreement because her share of the assets have decreased in value since the execution of the Agreement. As was stated previously, "if parties viewed an agreement as reasonable at the time of its inception, as evidenced by their having signed the agreement, they should be foreclosed from later trying to evade its terms by asserting that it was not in fact reasonable." Simeone at 401, 581 A.2d at 166. To allow a party to open up an agreement every time the agreement does not live up to their expectations would be insanity. The parties' Agreement also provides: 14. BREACH. C. In the event that either party must bring an action based upon the breach of the other for any of the terms and conditions of this Agreement, the party having so breached the Agreement (the responsibility for breaching the Agreement to be determined by a court of competent jurisdiction), agrees to be responsible not only for the damages sustained by the non-breaching party, but also agrees to reimburse the non-breaching party for any and all attorney's fees and court costs incurred because of the breach of the within Agreement. Wife's assertion of economic claims after entering into a valid Agreement with respect to all economic claims is a breach of the Agreement. Wife should be responsible to pay all of Husband's counsel fees resulting from this breach. Based on the foregoing, it is respectfully requested that this Honorable Court enter an Order granting Plaintiff's Motion to Strike Defendant's request for equitable distribution, alimony pendent lite, counsel fees, expenses and costs of suit, and continued maintenance and beneficiary designations of existing policies insuring life and health of Defendant as these issues 9 /I-- 5 t?? 0 .'1 0 have been fully addressed and disposed of in the parties' Separation and Property Settlement Agreement. Wife should also be required to pay all of Husband's reasonable counsel fees. Respectfully submitted, CGA Law Firm f? By: Thomas D. O'Shea, Esquire Supreme Court No. 34618 135 North George Street York, Pennsylvania 17401 Tel.: (717) 848-4900 10 0 jj+ a, w:;c ?-A CERTIFICATE OF SERVICE I hereby certify that on this date a copy of the foregoing Brief in Support of Preliminary Objections and Motion to Strike was served on counsel in the manner indicated below: FIRST-CLASS MAIL POSTAGE PREPAID THEREON ADDRESSED AS FOLLOWS: John C. Howett, Jr., Esquire 130 Walnut Street P. O. Box 810 Harrisburg, PA 17108 CGA Law Firm By: 'V G Thomas D. G?Shea, Esquire' ?.. w ?. Dated: I, I U `1 V. V. t? 9 A? k.T C7 JOSEPH C. ADAMS, Plaintiff V. KATHERINE C. ADAMS, Defendant r : IN THE COURT OF COMMON PLEAS : OF YORK COUNTY, PENNSYLVANIA No.2009-FC-00311-02 Divorce o c-? _2 For Plaintiff: Thomas D. O'Shea, Esquire fi M Supreme Court No. 34618 135 North George Street C: York, Pennsylvania 17401 r", Tel.: (717) 848-4900 t. ` For Defendant: John C. Howett, Jr., Esquire 130 Walnut Street P. 0. Box 810 Harrisburg, PA 17108 Tel.: (717) 234-2616 MOTION TO DISMISS DEFENDANT'S COUNTERCLAIM Submitted by Thomas D. O'Shea, Esquire attorney for Joseph C. Adams. lard d) J:w) X17 J°, JOSEPH C. ADAMS, Plaintiff VS. KATHERINE C. ADAMS, Defendant • : IN THE COURT OF COMMON PLEAS : OF YORK COUNTY, PENNSYLVANIA No.2009-FC-00311-02 -n T^ `T t, x Action in Divorce MOTION TO DISMISS DEFENDANT'S` COUNTERCLAIM AND NOW, this 29 day of February, 2009, comes the Plaintiff, Joseph C. Adams, by and through his counsel, CGA Law Firm, P.C., and files this Motion to Dismiss and states as follows: 1. Petitioner/Plaintiff, Joseph C. Adams, is an adult individual residing at 1323 Wicklow Drive, York, Pennsylvania 17404. 2. Respondent/Defendant, Katherine C. Adams, is an adult individual residing at 2127 Maple Crest Blvd., York, Pennsylvania 17406. 3. The parties entered into a Separation and Property Agreement (hereinafter referred to as "Agreement") on October 9, 2008, a copy of which is attached as Exhibit "A". 4. Petitioner and Respondent were married on August 8, 1992, in York County, Pennsylvania. Lill s' . C) IA CD ?h?1 A yypp??k bqR? ,[p?J U) ('s l • r On February 23, 2009 Defendant filed an Answer and Counterclaim to the Complaint in Divorce raising all economic issues that can be raised in a divorce action. 6. The Agreement dated October 9, 2008 addresses all of the parties' economic issues. 7. Defendant is barred from raising economic issues that have already been addressed in the parties' Separation and Property Settlement Agreement dated October 9, 2008. 8. The filing of the economic issues in Defendant's Counterclaim is a breach of the terms of the parties' Agreement. Under the terms of the Agreement, Defendant should be responsible to pay Plaintiff's counsel fees in connection with the preparation and presentation of this Motion. WHEREFORE, Plaintiff respectfully requests this Honorable Court to grant the following relief: a. Dismiss Defendant's Counterclaim to the Divorce Complaint; b. Order Defendant to pay counsel fees for the filing of the within Motion; and Any other relief the Court may deem appropriate. Respectfully submitted, CGA Law Firm By: Thomas D. O'Shea, Esquire Supreme Court No. 34618 135 North George Street York, PA 17401, Tel.: (717) 848-4900 2 V-,1, t g.., y Ul F N SEPARATION AND PROPERTY SETTLEMENT AGREEMENT THIS AGREEMENT, made this day of 20? , by and between Joseph C. Adams of York County, Pennsylvania, hereinafter referred to as "Husband", and Katherine C. Adams of York County, Pennsylvania, hereinafter referred to as "Wife,,. WITNESSETH: WHEREAS, Husband and Wife were lawfully joined in marriage on August 8, 1992, but differences have arisen between them in consequence of which they are living separate and apart from each other inside the marital residence; and WHEREAS, Husband and Wife desire to settle and determine finally and for all time their mutual rights with respect to property; and WHEREAS, Husband and Wife each acknowledge that he or she is fully cognizant of the assets, liabilities and general financial condition of the parties jointly and of each other individually, and both parties are of full and complete understanding that they have the right to seek the advice of separate legal counsel. NOW, THEREFORE, the parties intending to be legally bound hereby do covenant and agree as follows: SEPARATION. The parties agree to live separate and apart from each other, and each shall be free from the marital authority and control of the other as fully as if sole and unmarried. Neither shall molest, malign or interfere with the other, or compel or attempt to compel the other to live with him or her by any means whatsoever. Each may live as and wherever she or he may see fit, subject only to the provisions of this Agreement. 2. REAL ESTATE DISTRIBUTION. A. (i) Wife hereby agrees to convey to Husband any and all right, title, and interest which Wife may have in the marital residence located at 1323 Wicklow Drive, York, Pennsylvania . Wife agrees to execute all documents necessary, as Husband may request, to ?? fully and effectively fulfill the condition of this obligation. Husband agrees to allow Wife to , remain in the marital residence jointly together for a period of -3 months. As provided for J herein, Wife agrees to equally share in all expenses associated with the marital residence so long as she resides in the.mmarital residence. Husband agrees to refinance the property within six months of Wife's leaving; the marital residence. (fy'w." A " ? $ 1 E.tA °yPot7 t i ?yA?pp INJ w? IN) • t {ii} Except as agreed upon above and hereafter, upon execution of a warranty deed by Wife conveying her interest in the above property to Husband, Husband agrees to be fully responsible for any and all indebtedness existing upon said real estate. 3. PERSONAL PROPERTY. A. Husband and Wife have already divided all personal property accumulated by them during their marriage, and each does hereby acknowledge that Husband and Wife, respectively are now sole owners of such personal property as is in his or her respective possession. 4. MOTOR VEHICLES. A. Husband agrees that Wife will become the sole and exclusive owner of the 2006 Jeep Commander, and Husband agrees to execute all documents necessary to transfer to Wife any and all right, title and interest which Husband may have in said motor vehicle. B. Wife agrees that Husband will become the sole and exclusive owner of 2004 Mercedes Benz, and Wife agrees to execute all documents necessary to transfer to Husband any and all right, title and interest which Wife may have in said motor vehicle. C. As of the date of the execution of this Agreement, save and except as may have been provided for herein, both parties acknowledge that they are fully responsible for maintenance and upkeep of their respective motor vehicles, as well as responsible for payment of any encumbrance upon said motor vehicles and for the payment of any insurance required upon those motor vehicles. DEBTS. Each party represents and warrants to the other that they have not incurred any debts Or made any contracts which they have not disclosed before signing this agreement, for which the other party or his/her estate might be liable, and that they shall not contract or incur any debt or liability henceforth for which the other party or his/her estate might be liable. 6. CREDIT CARDS. Each party further agrees that they shall return any and all credit cards or charge plates which he or she may have in his/her possession to the party who is the owner of the account and agrees that any debt incurred on any credit cards or charge plates not returned to the other party shall be the sole and exclusive responsibility of the party who charged the debt. Each agrees to save the other harmless from any obligations or institutions of suit commenced due to any charges made on the other's card after date of execution of this Agreement. 2 M.,o 0 M t-,. 7. PENSION PLANS, EMPLOYEE BENEFITS. Each party waives any right, title or interest which he or she may have with respect to any and all pension plans, employee benefits, 401(k) plans, stock options, IRAs, etc., having accrued or to accrue to the other. 8. BANK ACCOUNTS. The parties agree to continue to contribute their income into their joint checking account and M&T Bank so long as they continue to reside together in the marital residence. All obligations with respect to the marital residence will be paid from this joint account. Wife shall keep her Wachovia checking account and Husband shall keep his Drovers/Fulton bank account. The parties shall evenly divide the joint savings account with ING, the joint M&T bank savings account ;#4715 and the joint PNC checking account. The parties agree to use the joint M & T savings account #9136 for real estate taxes. 9. BURIAL PLOTS. Husband agrees that Wife shall become the sole owner of the parties burial plots. 10. SEPARATE ASSETS. The parties hereby agree that, as to all assets not specifically mentioned herein which are presently titled in the sole name of one of the parties hereto or, if untitled, are presently in the sole possession of one of the parties hereto, the party not having title thereto or possession thereof hereby waives, releases, relinquishes and forever abandons any and all claims therein, and acknowledges that the party having title or possession of such items shall be the sole and exclusive owner thereof. 11. AFTER. ACQUIRED PROPERTY. From and after the date of this Agreement, each of the parties shall own and enjoy, independently of any claim or right of the other, all items of property be they real, personal or mixed, tangible or intangible, which are hereafter acquired by him or her, with the full power in him or her to dispose of the same as fully and effectively, in all respects and for all purposes, as though he or she were unmarried. 12. ALIMONY. Each party hereby waives any and all claims that he or she may have against the other party for alimony, alimony pendente lite, and/or spousal support. 13. RIGHT TO COUNSEL. The parties declare that each has had a full and fair opportunity to obtain U4 0 ip LIrl r? t?, independent legal advice of counsel of his or her selection; both are cobmizant of his/her right to legal representation, confirms that it is and has been his/her express, voluntary and knowing intention not to avail himself/herself of the right to counsel. Both further acknowledge that he/she chooses instead to represent himself/herself with respect to the preparation and execution of this Agreement. Both further declare that he/she is executing this Agreement freely and voluntarily, having obtained such knowledge and disclosure of the parties' respective assets, liabilities, legal rights and obligations and that both acknowledge that this Agreement is fair and equitable and is not the result of any fraud, coercion, duress, undue influence or collusion. 14. BREACH. A. If either party breaches any provision of this Agreement, the other shall have the right, at his or her election, either to sue for specific performance of this Agreement or to sue for damages premised upon said breach. In such proceedings, the only issue shall be whether one or both of the parties has breached the Agreement and in no event shall either Husband or Wife, their attorneys or legal representatives, have the right to question any of the provisions of this Agreement. B. This Agreement, at the option of either party, may be submitted to a court having jurisdiction over the marital action between Husband and Wife so that this Agreement can become part of any decree of divorce issued by said court and be made a part of said decree and any judgment thereon, with jurisdiction remaining in the court so that the terms hereof are complied with. The Agreement, however, will survive the decree of divorce and not be merged into it. Furthermore, both parties acknowledge that this Agreement may be enforced by the court regardless of whether it is made part of a Divorce Decree. C. In the event that either party must bring an action based upon the breach of the other for any of the teens and conditions of this Agreement, the party having so breached the Agreement (the responsibility for breaching the Agreement to be determined by a court of competent jurisdiction), agrees to be responsible not only for the damages sustained by the non- breaching party, but also agrees to reimburse the non-breaching party for any and all attorney's fees and court costs incurred because of the breach of the within Agreement. 15. BANKRUPTCY OR REORGANIZATION PROCEEDINGS. In the event that either party becomes a debtor in any bankruptcy or financial reorganization proceedings of any kind while any obligations remain to be performed by that party for the benefit of the other party pursuant to the provisions of this Agreement, the debtor spouse hereby waives, releases and relinquishes any right to claim any exemption (whether granted under state or federal law) to any property remaining in the debtor as a defense to any claim made pursuant hereto by the creditor-spouse, and the debtor-spouse hereby assigns, transfers and conveys to the creditor-spouse an interest in all of the debtor's exempt property sufficient to meet all obligations to the creditor-spouse as set forth herein, including all attorneys' fees and costs incurred in the enforcement of this paragraph or any other provision of this Agreement. No obligation created by this Agreement shall be discharged or dischargeable 4 C-+ rig;, VI R.lH ]]ryry? ?? y?pM1gg 4J?aF f fl ?1 +eNl ?'4) 0 '''. - 0 regardless of federal or state law= to the contrary and each party waives any and all right to assert that any obligation hereunder is discharged or dischargeable. 16. HUSBAND'S LIABILITY. Wife agrees that she has not contracted as of the date on which the parties separated nor shall Wife contract in the future, any debt or liability for which Husband or his property or his estate might be responsible and shall indemnify and save harmless Husband from any and all claims or demands made against him by reason of debts or obligations so incurred by her. 17. WIFFS LIABILITY. Husband agrees that he has not contracted as of the date on which the parties separated nor shall Husband contract in the future, any debt or liability for which Wife or her property or her estate might be responsible and shall indemnify and save harmless Wife fr om an y and all claims or demands made against her by reason of debts or obligations so incurred by him. 18. INCOME TAXES. The parties agree that they shall timely file a joint tax return for the 2008 tax year. The parties agree to evenly divide the tax return. Both parties agree to timely supply the other party with all documents necessary to file the return. In subsequent years, Husband shall claim Ryan for tax purposes and Kate shall claim Madison. 19. HUSBAND'S ESTATE. Wife agrees that, as of the date of the execution of this Agreement, she will release any and all claims which she would have in Husband's estate, regardless of whether he would die testate or intestate, and Wife further agrees that she does hereby waive, release and forever give up any right which she would have to elect against her Husband's Will, should any such Will now exist or hereafter come into being. Wife further releases any claim which she might have to act as Executrix or Administratrix of Husband's estate, and further releases any claim which she would have to declare any exemption allowed by any surviving spouse under the applicable laws of the Commonwealth of Pennsylvania. 20. WIFE'S ESTATE. Husband agrees that, as of the date of the execution of this Agreement, he will release any and all claims which he would have in Wife's estate, regardless of whether she would die testate or intestate, and Husband further agrees that he does hereby waive, release and forever give up any right which he would have to elect against his Wife's Will, should any such Will now exist or hereafter come into being. Husband further releases any claim which he might have to act as Executor and Administrator of Wife's estate, and further releases any claim which he would have to declare any exemption allowed by any surviving spouse under the applicable laws 0 T11.4 of the Commonwealth of Pennsylvania. 21. AGREEMENT NOT A BAR TO DIVORCE PROCEEDINGS. This Agreement shall not be considered to effect or bar the right of Wife or Husband to a limited or absolute divorce on lawful grounds, if such grounds now exist or shall hereafter exist or to such defense as may be available to either party. This Agreement is not intended to condone and shall not be deemed to be a condonation on the part of either party hereto or any act or acts on the part of the other party which have occasioned the disputes or unhappy differences which have occurred prior to or which may occur subsequent to the date hereof. 22. NO-FAULT DIVORCE. The parties intend to secure a mutual consent or no-fault divorce pursuant to the terms of Section 3301(c) of the Divorce Code of 1980, as amended. Not later than 97 days following the service of a Divorce Complaint, both Husband and Wife shall have executed an Affidavit consenting to the entry of a final Decree in divorce. 23. EFFECT OF DIVORCE DECREE. The parties agree that unless otherwise specifically provided herein, this Agreement shall continue in full force and effect after such time as a final decree in divorce may be entered with respect to the parties. 24. AGREEMENT MAY BE INCORPORATED IN DIVORCE DECREE. The parties agree that at the option of either party, the terms of this Agreement may be incorporated, but not merged, into any divorce decree which may be entered with respect to them. 25. MODIFICATION. A modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement. The failure of either party to insist upon strict performance of any of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature. 26. DATE OF EXECUTION. The "date of execution" or "execution date" of this Agreement shall be defined as the date upon which it is executed by the parties, if they have executed this Agreement on the same date. Otherwise, the "date of execution" or "execution date" of this Agreement shall be defined as the date of execution by the party last executing this Agreement. Vi IRN4 C„" gyy'y? Ffi? \pV? ?Frrtl?? 91?' ?t N 27. DISTRIBUTION DATE. The transfer of property, funds and/or documents provided for herein shall only take place on the "distribution date" which shall be defined as the date of execution of this Agreement unless otherwise specified herein. 28. FINANCIAL DISCLOSURE. The parties confirm that each has relied on substantial accuracy of the financial disclosures of the other as an inducement to the execution of this Agreement. 29. EXECUTION OF DOCUMENTS. Husband and Wife agree that each will, without remuneration and at the request of the other, execute or join in the execution of any and all documents required to give full force and effect to the provisions of the within Agreement. 30. SEVERABILITY. If any term, condition, clause or provision of this Agreement shall be determined or declared to be void or invalid in law or otherwise, then only that term, condition, clause or provision shall be stricken from this Agreement and in all other respects this Agreement shall be valid and continue in full force, effect and operation. Likewise, the failure of any party to meet her or his obligations under any one or more of the paragraphs herein, with the exception of the satisfaction of the conditions precedent, shall in no way avoid or alter the remaining obligations of the parties. 31. INTEGRATION. This Agreement constitutes the entire understanding of the parties and supersedes any and all prior agreements and negotiations between them. There are no representations or warranties other than those expressly set forth herein. 32. AGREEMENT BINDING ON HEIRS. This Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns. 33. SUBSEQUENT RECONCILIATION. In the event the parties should reconcile, this Agreement shall remain valid unless the parties agree in writing to cancel the provisions of this Agreement. 7 %n ,S,4 q f TQ fQ o5k yµ. 34, CONSTRUCTION OF AGREEMENT. No provisions of this Agreement shall be interpreted for or against any party because that party or that party's representative drafted this Agreement in whole or in part. In the construction of this Agreement, the parties hereto intend and agree that the separate provisions of this Agreement shall be construed as a whole and, where possible, consistent with each other. 35. LAW OF PENNSYLVANIA APPLICABLE. This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania. IN WITLESS WHEREOF, the parties have hereunto executed this Agreement the day and year first above written. Witness; Katherine C. Adams io ph C. Adams "Frvlk? 4??g ap W flk? VERIFICATION • I, the undersigned, Joseph C. Adams, Plaintiff, hereby affirm that the facts contained in the foregoing Motion to Dismiss Defendant's Counterclaim are true and correct to the best of my knowledge, information, and belief. This statement is made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Dated: 2 2V pq I s C. Adams vo ?aF?pyp VI pp iI CERTIFICATE OF SERVICE I hereby certify that on this date a copy of the foregoing Motion to Dismiss Defendant's Counterclaim was served on Defendant's counsel in the manner indicated below: VIA FIRST CLASS MAIL ADDRESSED AS FOLLOWS: John C. Howett, Jr., Esquire 130 Walnut Street P. O. Box 810 Harrisburg PA 17108 cry ' , CO 's. CGA Law Firm By: Thomas D. O' Shea, Esquire Dated: February Qq , 2009 ?-Il V-1 r4 Y a? f N uy 3 µ iM1Y • E JOSEPH C. ADAMS, : IN THE COURT OF COMMON PLEAS Plaintiff : OF YORK COUNTY, PENNSYLVANIA V. NO. Monday, February 23, 2009 3 08 PM 2009-FC-000311-02 KATHERINE C. ADAMS, : CIVIL Defendant : DIVORCE PETITION FOR RELATED CLAIMS UNDER DIVORCE CODE AND NOW, this 3 day of , 2009 comes the Plaintiff, -?s Joseph C. Adams, by his attorney, Thomas D. O'Shea, Esquire of CGA Law Firm, respectfu represents as follows: - -- w 1. Plaintiff is Joseph C. Adams, who currently resides at 1323 Wicklow Drive, Yoke Pennsylvania 17404. 2. Defendant is Katherine C. Adams, who currently resides at 2127 Maple Crest Blvd., York, Pennsylvania 17406. 3. Petitioner and Respondent were married on August 8, 1992, in York, Pennsylvania. 4. Plaintiff has heretofore filed a Complaint for Divorce on October 6, 2008. COUNTI Indignities - Section 3301(a)(6) 5. All preceding and succeeding paragraphs are incorporated by reference. 6. The Plaintiff is the innocent and injured spouse. 0 '' - 0 The Plaintiff would aver that the Defendant, in violation of her marriage vows and in violation of the laws of the Commonwealth of Pennsylvania, has offered such indignities unto the Plaintiff as to make the Plaintiffs condition intolerable and the Plaintiffs life burdensome. This action is not collusive. 9. The Plaintiff requests your Honorable Court to enter a decree in divorce, divorcing the Plaintiff and the Defendant. WHEREFORE, Plaintiff prays this Honorable Court to grant the relief requested. COUNT II Adultery - Section 3301(a)(2) 10. All preceding and succeeding paragraphs are incorporated by reference. 11. Plaintiff is the innocent and injured spouse. 12. Defendant has committed adultery. 13. Plaintiff requests your Honorable Court to enter a decree in divorce, divorcing Plaintiff and Defendant. WHEREFORE, Plaintiff prays this Honorable Court to grant the relief requested. Respectfully submitted, CGA Law Firm By: Thomas D. O' Shea, Esquire Supreme Court No. 34618 135 North George Street York, Pennsylvania 17401 Tel: (717) 848-4900 ?'"'-; ?,^` ?'. ?. ?? r "'S F?.??' • VERIFICATION • I, the undersigned, Joseph C. Adams, hereby affirm that the facts contained in the foregoing Petition for Related Claims Under Divorce Code are true and correct to the best of my knowledge, information, and belief. This statement is made subject to the penalties of 18 Pa.C.S. § 4904 relating to unworn falsification to authorities. Dated: FCk" N 2 3, Zo0I I CaJOA- Jo h C. Adams C ;4q?t ?M ?ppy M** `a`MMK4q?, N7 ?q d it ca?f Vxd1 • JOSEPH C. ADAMS, : IN THE COURT OF COMMON PLEAS Plaintiff : OF YORK COUNTY, PENNSYLVANIA V. . NO. CM - C -- all -- ®c;? KATHERINE C. ADAMS, : CIVIL ACTION -LAW Defendant : DIVORCE CERTIFICATE OF SERVICE I hereby certify that on this date a copy of the foregoing Plaintiff's Preliminary Objections to Defendant's Counterclaim to Complaint in Divorce in the above-captioned matter was served on counsel in the manner indicated below: VIA FIRST CLASS MAIL ADDRESSED AS FOLLOWS: John C. Howett, Jr., Esquire 130 Walnut Street P. O. Box 810 Harrisburg, PA 17108 CGA LAW FIRM Dated: a3 ?°1 By: T Somas D. O' ea, Esquire W Am n1 -f, V,,a • JOSEPH C. ADAMS, Plaintiff V. KATHERINE C. ADAMS, Defendant • : IN THE COURT OF COMMON PLEAS : OF YORK COUNTY, PENNSYLVANIA NO. Monday, February 23, 2009 3:08 PM 2009-FC-000311-02 CIVIL AC DIVORCE PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S t COUNTERCLAIM TO COMPLAINT IN DIVORCE r AND NOW, this )3 day of 2009 comes the Plai4tiff, :7- Joseph C. Adams, by and through his attorney, Thomas D. O'Shea, Esquire of the CGA Law r C?o Firm, and files the following Preliminary Objections to Defendant's Counterclaim to Complaint in Divorce as follows: 1. Plaintiff filed a Complaint for Divorce Under Section 3301(c) of the Divorce Code in the Court of Common Pleas of Cameron County, Pennsylvania on October 6, 2009. 2. Defendant filed a Petition Raising Question of Venue and Seeking Transfer of the Action to York County on January 5, 2009. 3. On February 6, 2009 Richard A. Masson, President Judge of the Court of Common Pleas of Cameron County, Pennsylvania entered an Order transferring the case to the Court of Common Pleas of York County. V tip; #D Q VI f J-4, • 4. Defendant filed an Answer and Counterclaim to Complaint in Divorce raising the issues of equitable distribution, alimony pendente, lite, counsel fees, expenses and costs of suit, and continued maintenance and beneficiary designations of existing policies insuring life and health of Defendant of retirement funds. 5. The parties executed a Separation and Property Settlement Agreement dated October 9, 2008 settling all of their economic issues. A copy of said Separation and Property Settlement Agreement is attached hereto as Exhibit "A". 6. Defendant has breached the Separation and Property Settlement Agreement dated October 9, 2008 by filing economic claims that have already been settled. Defendant should be responsible to pay all of Plaintiff's attorneys' fees resulting from this breach. WHEREFORE, Plaintiff respectfully requests that Defendant's Counterclaim to Complaint in Divorce be dismissed and Defendant pay Plaintiff's attorneys' fees. Respectfully submitted, CGA Law Firm By: Thomas D. O'S squire Supreme Court No. 34618 135 North George Street York, Pennsylvania 17401 Tel.: (717) 848-4900 ?1t 4"4, SEPARATION AND PROPERTY SETTLEMENT AGREEMENT THIS AGREEMENT, made this day of 20? , by and between Joseph C. Adams of York County, Pennsylvania, hereinafter referred to as "Husband", and Katherine C. Adams of York County, Pennsylvania, hereinafter referred to as "Wife". WITNESSETH: WHEREAS, Husband and Wife were lawfully joined in marriage on August 8,1992, but differences have arisen between them in consequence of which they are living separate and apart from each other inside the marital residence; and WHEREAS, Husband and Wife desire to settle and determine finally and for all time their mutual rights with respect to property; and WHEREAS, Husband and Wife each acknowledge that he or she is fully cognizant of the assets, liabilities and general financial condition of the parties jointly and of each other individually, and both parties are of full and complete understanding that they have the right to seek the advice of separate legal counsel. NOW, THEREFORE, the parties intending to be legally bound hereby do covenant and agree as follows: SEPARATION. The parties agree to live separate and apart from each other, and each shall be free from the marital authority and control of the other as fully as if sole and unmarried. Neither shall molest, malign or interfere with the other, or compel or attempt to compel the other to live with him or her by any means whatsoever. Each may live as and wherever she or he may see fit, subject only to the provisions of this Agreement. 2. REAL ESTATE DISTRIBUTION. A. (i) Wife hereby agrees to convey to Husband any and all right, title, and interest which Wife may have in the marital residence located at 1323 Wicklow Drive, York, Pennsylvania . Wife agrees to execute all documents necessary, as Husband may request, to , fully and effectively fulfill the condition of this obligation. Husband agrees to allow Wife to remain in the marital residence jointly together for a period of .3 months. As provided for herein, Wife agrees to equally share in all expenses associated with the marital residence so long as she resides in the marital residence. Husband agrees to refinance the property within six months of Wife's leaving the marital residence. 0 1 ull cl CID a ???y?I Spy,a?y 0 7kkd ?xs8 1-0 0 1 1. ? 0 (ii) Except as agreed upon above and hereafter, upon execution of a warranty deed by Wife conveying her interest in the above property to Husband, Husband agrees to be fully responsible for any and all indebtedness existing upon said real estate. PERSONAL PROPERTY. A. Husband and Wife have already divided all personal property accumulated by them during their marriage, and each does hereby acknowledge that Husband and Wife, respectively are now sole owners of such personal property as is in his or her respective possession. 4. MOTOR VEHICLES. A. Husband agrees that Wife will become the sole and exclusive owner of the 2006 Jeep Commander, and Husband agrees to execute all documents necessary to transfer to Wife any and all right, title and interest which Husband may have in said motor vehicle. B. Wife agrees that Husband will become the sole and exclusive owner of 2004 Mercedes Benz, and Wife agrees to execute all documents necessary to transfer to Husband any and all right, title and interest which Wife may have in said motor vehicle. C. As of the date of the execution of this Agreement, save and except as may have been provided for herein, both parties acknowledge that they are fully responsible for maintenance and upkeep of their respective motor vehicles, as well as responsible for payment of any encumbrance upon said motor vehicles and for the payment of any insurance required upon those motor vehicles. DEBTS. Each party represents and warrants to the other that they have not incurred any debts or made any contracts which they have not disclosed before signing this agreement, for which the other party or his/her estate might be liable, and that they shall not contract or incur any debt or liability henceforth for which the other party or his/her estate might be liable. 6. CREDIT CARDS. Each party further agrees that they shall return any and all credit cards or charge plates which he or she may have in his/her possession to the party who is the owner of the account and agrees that any debt incurred on any credit cards or charge plates not returned to the other party shall be the sole and exclusive responsibility of the party who charged the debt. Each agrees to save the other harmless from any obligations or institutions of suit commenced due to any charges made on the other's card after date of execution of this Agreement. 2 G? V-# • 7. PENSION PLANTS, EMPLOYEE BENEFITS. • Each party waives any right, title or interest which he or she may have with respect to any and all pension plans, employee benefits, 401(k) plans, stock options, IRAs, etc., having accrued or to accrue to the other. 8. BANK ACCOUNTS. The parties agree to continue to contribute their income into their joint checking account and M&T Bank so long as they continue to reside together in the marital residence. All obligations with respect to the marital residence will be paid from this joint account. Wife shall keep her Wachovia checking account and Husband shall keep his Drovers/Fulton bank account. The parties shall evenly divide the joint savings account with ING, the joint M&T bank savings account #4715 and the joint PNC checking account. The parties agree to use the joint M & T savings account #9136 for real estate taxes. 9. BURIAL PLOTS. Husband agrees that Wife shall become the sole owner of the parties burial plots. 10. SEPARATE ASSETS. The parties hereby agree that, as to all assets not specifically mentioned herein which are presently titled in the sole name of one of the parties hereto or, if untitled, arc presently in the sole possession of one of the parties hereto, the party not having title thereto or possession thereof hereby waives, releases, relinquishes and forever abandons any and all claims therein, and acknowledges that the party having title or possession of such items shall be the sole and exclusive owner thereof. 11. AFTER ACQUIRED PROPERTY. From and after the date of this Agreement, each of the parties shall own and enjoy, independently of any claim or right of the other, all items of property be they real, personal or mixed, tangible or intangible, which are hereafter acquired by him or her, with the full power in him or her to dispose of the same as fully and effectively, in all respects and for all purposes, as though he or she were unmarried. 12. ALIMONY. Each party hereby waives any and all claims that he or she may have against the other party for alimony, alimony pendente lite, and/or spousal support. 13. RIGHT TO COUNSEL. The parties declare that each has had a full and fair opportunity to obtain tA"? ,a i; u 4S u5 V4 independent legal advice of counsel of his or her selection; both are cognizant of his/her right to legal representation, confirms that it is and has been his/her express, voluntary and knowing intention not to avail himself/herself of the right to counsel. Both further acknowledge that he/she chooses instead to represent himself/herself with respect to the preparation and execution of this Agreement. Both further declare that he/she is executing this Agreement freely and voluntarily, having obtained such knowledge and disclosure of the parties' respective assets, liabilities, legal rights and obligations and that both acknowledge that this Agreement is fair and equitable and is not the result of any fraud, coercion, duress, undue influence or collusion. 14. BREACH. A. If either party breaches any provision of this Agreement, the other shall have the right, at his or her election, either to sue for specific performance of this Agreement or to sue for damages premised upon said breach. In such proceedings, the only issue shall be whether one or both of the parties has breached the Agreement and in no event shall either Husband or Wife, their attorneys or legal representatives, have the right to question any of the provisions of this Agreement. B. This Agreement, at the option of either party, may be submitted to a court having jurisdiction over the marital action between Husband and Wife so that this Agreement can become part of any decree of divorce issued by said court and be made a part of said decree and any judgment thereon, with jurisdiction remaining in the court so that the terms hereof are complied with. The Agreement, however, will survive the decree of divorce and not be merged into it. Furthermore, both parties acknowledge that this Agreement may be enforced by the court regardless of whether it is made part of a Divorce Decree. C. In the event that either party must bring an action based upon the breach of the other for any of the terns and conditions of this Agreement, the party having so breached the Agreement (the responsibility for breaching the Agreement to be determined by a court of competent jurisdiction), agrees to be responsible not only for the damages sustained by the non- breaching party, but also agrees to reimburse the non-breaching party for any and all attorney's fees and court costs incurred because of the breach of the within Agreement. 15. BANKRUPTCY OR REORGANIZATION PROCEEDINGS. In the event that either party becomes a debtor in any bankruptcy or financial reorganization proceedings of any kind while any obligations remain to be performed by that party for the benefit of the other party pursuant to the provisions of this Agreement, the debtor spouse hereby waives, releases and relinquishes any right to claim any exemption (whether granted under state or federal law) to any property remaining in the debtor as a defense to any claim made pursuant hereto by the creditor-spouse, and the debtor-spouse hereby assigns, transfers and conveys to the creditor-spouse an interest in all of the debtor's exempt property sufficient to meet all obligations to the creditor-spouse as set forth herein, including all attorneys' fees and costs incurred in the enforcement of this paragraph or any other provision of this Agreement. No obligation created by this Agreement shall be discharged or dischargeable 4 i U''l ?-A 0 - ?, - • regardless of federal or state law to the contrary and each party waives any and all right to assert that any obligation hereunder is discharged or dischargeable. 16. HUSBAND'S LIABILITY. Wife agrees that she has not contracted as of the date on which the parties separated nor shall Wife contract in the future, any debt or liability for which Husband or his property or his estate might be responsible and shall indemnify and save harmless Husband from any and all claims or demands made against him by reason of debts or obligations so incurred by her. 17. WIFE'S LIABILITY. Husband agrees that he has not contracted as of the date on which the parties separated nor shall Husband contract in the future, any debt or liability for which Wife or her property or her estate might be responsible and shall indemnify and save harmless Wife from any and all claims or demands made against her by reason of debts or obligations so incurred by him. 18. INCOME TAXES, The parties agree that they shall timely file a joint tax return for the 2008 tax year. The parties agree to evenly divide the tax return. Both parties agree to timely supply the other party with all documents necessary to file the return. In subsequent years, Husband shall claim Ryan for tax purposes and Kate shall claim Madison. 19. HUSBAND'S ESTATE. Wife agrees that, as of the date of the execution of this Agreement, she will release any and all claims which she would have in Husband's estate, regardless of whether he would die testate or intestate, and Wife further agrees that she does hereby waive, release and forever give up any right which she would have to elect against her Husband's Will, should any such Will now exist or hereafter come into being. Wife further releases any claim which she might have to act as Executrix or Administratrix of Husband's estate, and further releases any claim which she would have to declare any exemption allowed by any surviving spouse under the applicable laws of the Commonwealth of Pennsylvania. 20. WIFE'S ESTATE. Husband agrees that, as of the date of the execution of this Agreement, he will release any and all claims which he would have in Wife's estate, regardless of whether she would die testate or intestate, and Husband further agrees that he does hereby waive, release and forever give up any right which he would have to elect against his Wife's Will, should any such Will now exist or hereafter come into being. Husband further releases any claim which he might have to act as Executor and Administrator of Wife's estate, and further releases any claim which he would have to declare any exemption allowed by any surviving spouse under the applicable laws i IJ ?Ayy I-A of the Commonwealth of Pennsylvania. 21. AGREEMENT NOT A BAR TO DIVORCE PROCEEDINGS. This Agreement shall not be considered to effect or bar the right of Wife or Husband to a limited or absolute divorce on lawful grounds, if such grounds now exist or shall hereafter exist or to such defense as may be available to either party. This Agreement is not intended to condone and shall not be deemed to be a condonation on the part of either party hereto or any act or acts on the part of the other party which have occasioned the disputes or unhappy differences which have occurred prior to or which may occur subsequent to the date hereof. 22. NO-FAULT DIVORCE. The parties intend to secure a mutual consent or no-fault divorce pursuant to the terms of Section 3301(c) of the Divorce Code of 1980, as amended. Not later than 97 days following the service of a Divorce Complaint, both Husband and Wife shall have executed an Affidavit consenting to the entry of a final Decree in divorce. 23. EFFECT OF DIVORCE DECREE. The parties agree that unless otherwise specifically provided herein, this Agreement shall continue in full force and effect after such time as a final decree in divorce may be entered with respect to the parties. 24. AGREEMENT MAY BE INCORPORATED IN DIVORCE DECREE. The parties agree that at the option of either party, the terms of this Agreement may be incorporated, but not merged, into any divorce decree which may be entered with respect to them. 25. MODIFICATION. A modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement. The failure of either party to insist upon strict performance of any of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature. 26. DATE OF EXECUTION. The "date of execution" or "execution date" of this Agreement shall be defined as the date upon which it is executed by the parties, if they have executed this Agreement on the same date. Otherwise, the "date of execution" or "execution date" of this Agreement shall be defined as the date of execution by the party last executing this Agreement. 6 C) co t,) f1l) A;? IIQ W 1?.:o 0 ? .. . 0 27. DISTRIBUTION DATE. The transfer of property, funds and/or documents provided for herein shall only take place on the "distribution date" which shall be defined as the date of execution of this Agreement unless otherwise specified herein. 28. FINANCIAL DISCLOSURE. The parties confirm that each has relied on substantial accuracy of the financial disclosures of the other as an inducement to the execution of this Agreement. 29. EXECUTION OF DOCUMENTS. Husband and Wife agree that each will, without remuneration and at the request of the other, execute or join in the execution of any and all documents required to give full force and effect to the provisions of the within Agreement. 30. SEVERABILITY. If any term, condition, clause or provision of this Agreement shall be determined or declared to be void or invalid in law or otherwise, then only that term, condition, clause or provision shall be stricken from this Agreement and in all other respects this Agreement shall be valid and continue in full force, effect and operation. Likewise, the failure of any party to meet her or his obligations under any one or more of the paragraphs herein, with the exception of the satisfaction of the conditions precedent, shall in no way avoid or alter the remaining obligations of the parties. 31. INTEGRATION. This Agreement constitutes the entire understanding of the parties and supersedes any and all prior agreements and negotiations between them. There are no representations or warranties other than those expressly set forth herein. 32. AGREEMENT BINDING ON HEIRS. This Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns. 33. SUBSEQUENT RECONCILIATION. In the event the parties should reconcile, this Agreement shall remain valid unless the parties agree in writing to cancel the provisions of this Agreement. 7 0 0 Ul 0 0q? # 5a? x •p?s?;{ 'f1) m? Ali n'l V,? 0 - .. - 0 34. CONSTRUCTION OF AGREEMENT. No provisions of this Agreement shall be interpreted for or against any party because that party or that party's representative drafted this Agreement in whole or in part. In the construction of this Agreement, the parties hereto intend and agree that the separate provisions of this Agreement shall be construed as a whole and, where possible, consistent with each other. 35. LAW OF PENNSYLVANIA APPLICABLE. This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania. IN WITNESS WHEREOF, the parties have hereunto executed this Agreement the day and year first above written. Witness: Katherine C. Adams (SEAL) Jo ph C. Adams 8 S ??ay r'4 pr? Irr?j? Sddn? 1 Y RQ w7 C 1? rx? ?no 9 - 1. . 0 VERIFICATION I, Joseph C. Adams, hereby affirm that the facts contained in the foregoing Preliminary Objections are true and correct to the best of my knowledge, information, and belief. This statement is made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Dated: F U 23 2XQ _ ?2kaoL- (LoA?h C. Adams r^, IM ?' w !;, A14 t 1J'A RA JOSEPH C. ADAMS, : IN THE COURT OF COMMON PLEAS Plaintiff : OF YORK COUNTY, PENNSYLVANIA V. ; NO. c?206 9 -- F? - 3l1- KATHERINE C. ADAMS, : CIVIL ACTION - LAW Defendant : DIVORCE CERTIFICATE OF SERVICE I hereby certify that on this date a copy of the foregoing Plaintiff's Preliminary Objections to Defendant's Counterclaim to Complaint in Divorce in the above-captioned matter was served on counsel in the manner indicated below: VIA FIRST CLASS MAIL ADDRESSED AS FOLLOWS: John C. Howett, Jr., Esquire . c.7 130 Walnut Street ` P. O. Box 810 Harrisburg, PA 17108 W C) CGA LAW FIRM Dated: D31 DI By: O OShea., Esquire lol- ^, to ?R. ,i,i??nnvyy +uR9y sg[x leaf 2 R f'?YY ?R+ esq. 1,k • • ' IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA JOSEPH C. ADAMS, ) Monday, February 23, 2009 3:11 PM Plaintiff 1 V. ) NO. KATHERINE C. ADAMS, ) CIVIL ACTION - LAW Defendant ) IN DIVORCE ANSWER AND COUNTERCLAIM TO COMPLAINT IN DIVORCE AND NOW, comes Defendant, Katherine C. Adams, by and through her counsel, Howett, Kissinger & Holst, P.C., who files this Answer and Counterclaim to Complaint in Divorce and in support thereof avers the following: 1. Admitted. 2. Defendant, Katherine C. Adams, now resides at 2127 Maple Crest Boulevard, York, York County, PA 17406. 3. The parties are no longer residing at the same address as set forth in paragraph 2 above. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. No answer required. N a - rn .r"'`, t#? f} ss "I- 4 & I 1 '0, COUNTERCLAIM COUNT I - EQUITABLE DISTRIBUTION 10. The prior paragraphs of this Answer and Counterclaim are incorporated herein by reference thereto. 11. Plaintiff and Defendant have legally and beneficially acquired property, both real and personal, during the marriage, which property is "marital property." WHEREFORE, Plaintiff respectfully requests the Court to equitably divide all marital property. COUNT II - ALIMONY PENDENTE LITE 12. The prior paragraphs of this Answer and counterclaim are incorporated herein by reference thereto. 13. Defendant lacks sufficient property to provide for her reasonable needs and is unable to support herself through appropriate employment and requires reasonable support to adequately maintain herself, during the course of this litigation, in accordance with the standard of living established during the marriage. WHEREFORE, Defendant requests the Court to enter an Order for reasonable temporary alimony until such time as she is no longer permitted to receive same. COUNT III - COUNSEL FEES, EXPENSES AND COSTS OF SUIT 14. The prior paragraphs of this Answer and Counterclaim are incorporated herein by reference thereto. 15. Defendant has retained an attorney to bring this action and has agreed to pay him a reasonable fee. plMp p? 1 0 n h fill "1 16. Defendant has incurred and will incur costs and expenses in prosecuting this action and has incurred unnecessary counsel fees and expenses by being required to transfer this action from the original county where it was filed (Cameron County) to York County, the county of proper venue. 17. Defendant is not financially able to meet either the expenses and costs of prosecuting this action or the fees to which her attorney will be entitled in this case. WHEREFORE, Defendant respectfully requests this Court to enter an award of interim counsel fees, costs and expenses until final hearing and thereupon award such additional counsel fees, costs and expenses as deemed appropriate. COUNT IV - CONTINUED MAINTENANCE AND BENEFICIARY DESIGNATIONS OF EXISTING POLICIES INSURING LIFE AND HEALTH OF DEFENDANT AND OF RETIREMENT FUNDS 18. The prior paragraphs of this Answer and Counterclaim are incorporated herein by reference thereto. 19. During the course of the marriage, Plaintiff has maintained certain life and health insurance policies and retirement funds for the benefit of Defendant. WHEREFORE, Defendant respectfully requests this Court enter an order directing Plaintiff to continue to maintain policies of life and health insurance and retirement funds for the benefit of Defendant. Date: z Z1 I Respect lly submitted, Jo C. Howett, Jr., E uire HOWETT, KISSINGER & HOLST, P.C. 130 Walnut Street, P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams c qm 'Y VERIFICATION I, Katherine C. Adams, hereby swear and affirm that the facts contained in the foregoing newer and Counterclaim to Complain in Divorce are true and correct to the best of my knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unworn falsification to authorities. Date: 2/17/09 ?a"WjQMdDnv?? KATHERINE C. ADAMS fl? tip ?„o • . . . .0. IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA JOSEPH C. ADAMS, Plaintiff V. KATHERINE C. ADAMS, Defendant NO. CIVIL ACTION - LAW IN DIVORCE CERTIFICATE OF SERVICE I, John C. Howett, Jr., Esquire, counsel for Katherine C. Adams, Defendant in the above- captioned action, hereby certify that a true and correct copy of the foregoing Answer and Counterclaim to Complaint in Divorce was served upon Thomas D. O'Shea, Esquire, counsel for Plaintiff, Joseph C. Adams, by depositing same in the United States mail, first class, on February 17 , 2009, addressed as follows: Thomas D. O'Shea, Esquire CGA LAW FIRM 135 North George Street York, PA 17401 Date: -?- I 7 /01 C John 4ett, Jr., Esquire V HOWETT, KISSINGER & HOLST, P.C. 130 Walnut Street, P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant Katherine C. Adams 0 s Npp tm?F' ?n?q,v7 V'.`R W 9 • LAW OFFICES OF HOWETT, KISSINGER & HOLST, P.C. 130 WALNUT STREET POST OFFICE BOX 810 HARRISBURG, PENNSYLVANIA 17108 JOHN C. HOWETT, JR. DONALD T. KISSINGER DARREN J. HOLST REBECCA McCLINCY DARR DEBRA M.SHIMP Legal Assistant February 17, 2009 Pamela Lee, Prothonotary YORK COUNTY COURTHOUSE 45 North George Street York, PA 17401 Re: Dear Ms. Lee: Monday, February 23. 2009 3:11 PM 2009-FC-000311-02 Joseph C. Adams v. Katherine C. Adams Enclosed is an order docketed February 17, 2009 from the Cameron County court transferring the above action to York County. I would appreciate it if you would file the enclosed Answer and Counterclaim to the York County action as soon as it is docketed from Cameron County. If you would be kind enough to call my office as soon as the Cameron County action is lodged in York County, I would appreciate it so that I can serve a copy on opposing counsel. I've also provided a pre-stamped, pre-addressed envelope so that you may return clocked copies of our Answer and Counterclaim with the York County docket number. Thank you very much for your consideration. If you have any questions, please feel to contact my legal assistant, Deb Shimp, at the above number. Sincerely, C. Howett, Jr. JCH/dms Enclosures (717) 234-2616 FAX (717) 234-5402 -n ? ?.. w J hJ cc: Thomas D. O'Shea, Esquire (w/encl) Katherine C. Adams (w/encl) 1^ t 'Ad ??'5y5y uM? u? ?f Ax j?„a d t F JOSEPH C. ADAMS, Plaintiff, v. Monday, February 23. 2009 3:10 PM 2009-FC-000311-02 : IN THE COURT OF COMMON PLEAS : OF THE FIFTY-NINTH JUDICIAL : DISTRICT OF PENNSYLVANIA : CIVIL ACTION -LAW No. Qbb43- P H3 KATHERINE C. ADAMS, Defendant. ACCEPTANCE OF SERVICE I accept service of the Complaint for Divorce. Date: I () I q 1021 Katherme C. Adams O CT'i Truc and Correct Copy certified fron the Records of Cameron Co Penna. Deputy Prothonotary {00120511/1} =;"_ t? ?41 JOSEPH C. ADAMS, Plaintiff, V. KATHERINE C. ADAMS, Defendant. : IN THE COURT OF COMMON PLEAS : OF THE FIFTY-NINTH JUDICIAL : DISTRICT OF PENNSYLVANIA : CIVIL ACTION -LAW NOTICE TO DEFEND AND CLAIM RIGHTS Monday, February 23, 2009 3:10 PM 2009-FC-000311-02 You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take prompt action. You are warned that if you fail to do so, the case may proceed without you and a decree of divorce or annulment may be entered against you by the Court. A judgment may also be entered against you for any other claim orire iefrequ'-d-sted in these papers by the Plaintiff. You may lose money or property or other rights 11m1portant Fyou, ` including custody or visitation of your children. cry _ _ When the grounds for the divorce is indignities or irretrievable breakdow" of'the r.. marriage, you may request marriage counseling. A list of marriage counselors 4s 6ailabon the Office of the Prothonotary at the Cameron County Courthouse, 20 East Fifth Sire t, niponum, Pennsylvania 15834, N, IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYER'S FEES OR EXPENSES BEFORE A DIVORCE OR ANNULMENT IS GRANTED, YOU MAY LOSE THE RIGHT TO CLAIM ANY OF THEM. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. F rue and Correct Copy certified from the Records of Cameron Co Penna. Ate 9-eav Deputy Prothonotary Office of the Prothonotary CC= Cameron County Courthouse ?j 20 East Fifth Street C'=. Emporium, Pennsylvania 15834 (717) 486-9328 -=: a A3 ?.4 JOSEPH C. ADAMS, Plaintiff, V. KATHERINE C. ADAMS, Defendant. : IN THE COURT OF COMMON PLEAS : OF THE FIFTY-NINTH JUDICIAL : DISTRICT OF PENNSYLVANIA : CIVIL ACTION -LAW w Nd•"-- L` 2UU8 " aI C/ Monday, February 23, 2009 310 PM I/ 2009-FC-000311-02 AVISO PARA DEFENDER Y RECLAMAR DERECHOS USTED HA SIDO DEMANDADO EN LA CORTE. Si desea defenderse de las quejas expuestas en las paginas siguientes, debe tomar accion con prontitud. Se le avisa que si no se defiende, el caso puede proceder sin usted y decreto de divorcio o anulamiento puede ser emitido en su contra por la Corte. Una decision puede tambien ser emitida en su contra pdr cmalgt[Rr otra queja o compensacion reclamados por el demandante. Usted puede perder jdijero o ? propiedades u otros derechos importantes para usted. -, Cuando la base para el divorcio es indignidades o rompimiento irreparable del. matrimonio, usted puede solicitar consejo matrimonial. Una lista de consejeros m tnmoni- estd disponible en la oficina del Prothonotary, en la Cameron County Courthouse, , 0 East Fifth Street, Emporium, Pennsylvania 15834. r rv rv SI USTED NO RECLAMA PENSION ALIMENTICIA, PROPIEDAD MARITAL, HONORARIOS DE ABOGADO U OTROS GASTOS ANTES DE QUE EL DECRETO FINAL DE DIVORCIO 0 ANULAMIENTO SEA EMITIDO, USTED PUEDE PERDER EL DERECHO A RECLAMAR CUALQUIERA DE ELLOS. USTED DEBE LLEVAR ESTE PAPEL A UN ABOGADO DE INMEDIATO. SI NO TIENE 0 NO PUEDE PAGAR UN ABOGADO, VAYA 0 LLAME A LA OFICINA INDICADA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. True and Correct Copy certified frorn the Records of Cameron Co Penna. Deputy Prothonotary Office of the Prothonotary r-a Cameron County Courthouse 20 East Fifth Street Emporium, Pennsylvania 15834 C> (717) 486-9328 ?'' Q 10 OP ?,.4 • JOSEPH C. ADAMS, Plaintiff, V. KATHERINE C. ADAMS, Defendant. The Plaintiff and the Defendant were married on August 8, 1992 at York, Monday, February 23, 2009 3 PM There have been no prior actions of divorce or for annulment between the parties. 1. Plaintiff is Joseph C. Adams who currently resides at 1323 Wicklow Drive, York, York County, Pennsylvania 17404. r? 2. Defendant is Katherine C. Adams who currently resides at 1323 4ciiS w Nive York, York County, Pennsylvania 17404. 3. Although the parties are residing at the same address, they are no c habiting:s i Z, r.? fw husband and wife, as of the date of the filing of this Complaint in Divorce. 4. Plaintiff has been a bona fide resident in the Commonwealth for at least six months immediately previous to the filing of this Complaint. 5 Pennsylvania. 6 7 • : IN THE COURT OF COMMON PLEAS : OF THE FIFTY-NINTH JUDICIAL : DISTRICT OF PENNSYLVANIA : CIVIL ACTION -LAW N 2008 43 COMPLAINT FOR DIVORCE 2009-FC-000311-02 COUNT I No-Fault - Section 3301(c) The marriage is irretrievably broken. rue and Correct Copy certified from the Records of Cameron Co Penna. Deputy Prothonotary ?f w w t" d IQ ?qqg ?gg ?a? 8. The Plaintiff has been advised of the availability of counseling and that the Plaintiff may have the right to request that the Court require the parties to participate in counseling. 9. Plaintiff requests your Honorable Court to enter a Decree of Divorce. WHEREFORE, Plaintiff prays this Honorable Court to grant the relief requested. Respectfully submitted, CGA Law Firm By: Th mas D. O'Shea, Esquire Supreme Court No. 34618 135 North George Street York, Pennsylvania 17401 Tel.: (717) 848-4900 nY' CO True and Correct Copy certified from the Records of Cameron Co Penna. /k V-,? P-Pa_wf Deputy Prothonotary to ,t-0 011-14 W„t, VERIFICATION I verify that the statements made in this Complaint are true and correct. I understand that false statements herein made are subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Dated: JO/2-/ft C614- ose C. Adams True and Correct Copy ce;-tifieda from the Records of Cameron Co tnna. wz,?, Deputy Prothonotary r--. i Ul ? 1.0 • • IN THE COURT OF COMMON PLEAS OF THE FIFTY-NINTH JUDICIAL DISTRICT OF PENNSYLVANIA JOSEPH C. ADAMS, Plaintiff V. KATHERINE C. ADAMS, Defendant NO. 2008-2143 CIVIL ACTION - LAW IN DIVORCE Monday, February 23, 2009 3:08 PM 2009-FC-000311-02 PETITION RAISING QUESTION OF VENUE AND SEEKING TRANSFER OF THE ACTION TO YORK COUNTY AND NOW, comes Katherine C. Adams, by and through her counsel, John C. Howett, Jr., Esquire of Howett, Kissinger & Holst, P.C., who states the following in support of the within Petition: rt_ -n 1. The divorce complaint establishes that both Plaintiff and Defendant rn w CD - reside in York County, Pennsylvania. c -- 2. Pa.R.C.P. 1920.2 "Venue" requires that an action can only be brought # 'a county in which the Plaintiff or Defendant resides unless the parties agree to a different county "in a writing which shall be attached to the complaint" or by participation in the proceedings. 3. The parties have not agreed to venue in Cameron County nor was any writing establishing the same attached to the Complaint. 4. True and Correct Copy certified from the Records of Cameron Co Penna. ax ?cv Deputy Prothonotary Defendant has not participated in the proceedings in CameronCounty. CX wa,lv fil }..A • 5. This Court has no jurisdiction to enter a decree in divorce because the record does not establish compliance with the venue requirements. See Danz v. Danz, 108 P.D.D.R.R. 69, 1506 WDA 2007, Pa. Superior Court, decided April 16, 2008. 6. Rule 1920.2(c) permits the Court to transfer the action to the appropriate court of any other county where the action could originally have been brought. 7. Defendant objects to any further proceedings in this Court except for the relief requested herein. WHEREFORE, Defendant requests this Honorable Court transfer this action to the Court of Common Pleas of York County, Pennsylvania. Date: t 2-/31 to %- True and Correct Copy certified from the Records of Cameron Co Penna. Deputy Prothonotary Respectfully submitted, cI Jdhn-C-Howett, Jr., Esquire HOWETT, KISSINGER & HOLST, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams F Qn i -_ a 9 flyl ?S ?k1 V- VERIFICATION I, Katherine C. Adams, hereby swear and affirm that the facts contained in the foregoing Petition Raising Question of Venue and Seeking Transfer of the are true and action to York County correct to the best of my knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Date: 12/31/08 I?M11J W !sC.. KATHERINE C. ADAMS ^ ? A ? 3 t 1 y •t True and Correct Copy certified from, the Records of CaiTeron Co Penna. A &U, ?a- ce P- Deputy Prothonotary b 114 TNT` r'W,I t J""? 0 . , IN THE COURT OF COMMON PLEAS OF THE FIFTY-NINTH JUDICIAL DISTRICT OF PENNSYLVANIA JOSEPH C. ADAMS, Plaintiff ) V. ) ) KATHERINE C. ADAMS, ) Defendant ) Monday, February 23, 2009 3.08 PM 2009-FC-000311-02 r*? c? ca NO. 2008-2143 CIVIL ACTION - LAW IN DIVORCE CERTIFICATE OF SERVICE I, John C. Howett, Jr., Esquire, counsel for Katherine C. Adams, Defendant in the A6.0- captioned action, hereby certify that a true and correct copy of the foregoing Petition Raising- Question of Venue and Seeking Transfer of the Action to York County was served upon Thomas D. O'Shea, Esquire, counsel for Plaintiff, Joseph C. Adams, by depositing same in the United States mail, first class, on December 31, 2008, addressed as follows Thomas D. O'Shea, Esquire CGA LAW FIRM 135 North George Street York, PA 17441 Date: kZ 3 _ True and Correct Copy certified from the Records of Cameron Co Penna. ,JL r ae Deputy Prothonotary c? s? } CP /11, ,. e ?L ?' - Johu.j .' Howett, Jr., Esquire HOWETT, KISSINGER & HOLST, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: 717-234-2616 Counsel for Defendant, Katherine C. Adams CD l all "i 1,0 Date: 2/17/2009 Can& County Court of Common Pleas • User: DSHAFFER Tim-12:14 PM ROA Report Page 1 of 1 Case: CV-2008-02143-DV Current Judge: RICHARD A MASSON JOSEPH C ADAMS vs. KATHERINE C ADAMS Monday, February 23, 2009 3:08 PM 2009-FC-000311-02 Divorce Date Judge 10/6/2008 PLAINTIFF'S COMPLAINT IN DIVORCE FILED AND CERTIFIED COPY RICHARD A MASSON OF COMPLAINT WITH ENDORSEMENT THEREON TO PLEAD TO SAME, ISSUED FOR SERVICE UPON THE DEFENDANT. VERIFICATION FILED RICHARD A MASSON Filing: Divorce Complaint Paid by: ADAMS, JOSEPH C (plaintiff) Receipt RICHARD A MASSON number: 0011984 Dated: 10/6/2008 Amount: $60.50 (Money order) 10/17/2008 ACCEPTANCE OF SERVICE FILED RICHARD A MASSON 1/5/2009 MOTION FOR TRANSFER FILED BY JOHN C. HOWLETT, ATTOENRY RICHARD A MASSON FOR THE DEFENDANT/IN HOLDING FOR 20 DAYS/TO THE JUDGE 1/26/2009 2/17/2009 ORDER OF COURT FILED NOW, this 6th day of February 2009, upon RICHARD A MASSON consideration of Defendant's Petition Objecting to Venue in Cameron County, IT IS ORDERED AND DECREED that the above captioned matter is TRANSFERRED to the COURT OF COMMON PLEAS OF THE COUNTY OF YORK, Pnnsylvania. Plaintiff shall pay, within 30 days of the date of this Order, all costs and fees associated with the transfer and removal of the record from the Court of Common Pleas of Cameron County, Pennsylvania to the Court of Common Pleas of the County of York, Pennsylvania. Pursuant to Pa.R.C.P. No. 213(f), the Prothonotary of the Court of Common Pleas of the County of Cameron is directed to immediately transfer the record together with a certified copy of the docket entries to the Prothonotary of the Court of Common Pleas of the County of York. BY THE COURT: /s/ Richard A. Masson, President Judge. True and Correct Copy certified from the Records of Cameron Con i? Penna. ?L L. Apr Prothonotary ,? ?,? ?,? 17_? day, February 23. 2009 3.08 PM 2009-FC-000311-02 IN THE COURT OF COMMON PLEAS OF THE FIFTY-NINTH JUDICIAL DISTRICT OF PENNSYLVANIA JOSEPH C. ADAMS, Plaintiff VS. KATHERINE C. ADAMS, Defendant * COUNTY BRANCH-CAMERON * * * CIVIL ACTION - LAW * * * No. 2008-2143 f-I t C? ORDER TO TRANSFER CASE NOW, this a day of February 2009, upon consideration of Defendant's Petitk= W Objecting to Venue in Cameron County, IT IS ORDERED AND DECREED that tb? ovF captioned matter is TRANSFERRED to the COURT OF COMMON PLEAS OF THE C) COUNTY OF YORK, Pennsylvania. Plaintiff shall pay, within 30 days of the date of this Order, all costs and fees associated with the transfer and removal of the record from the Court of Common Pleas of Cameron County, Pennsylvania to the Court of Common Pleas of the County of York, Pennsylvania. Pursuant to Pa.R.C.P. No. 213(f), the Prothonotary of the Court of Common Pleas of the County of Cameron is directed to immediately transfer the record together with a certified copy of the docket entries to the Prothonotary of the Court of Common Pleas of the County of York BY THE COURT: True and Correct Copy ?? rn certified from the Records of Cameron Co S -- Penna. n,D i g co 4%vftProthc) notary cn CD r ul • • Cameron County Courthouse MARY GRACE OLAY PROTHONOTARY 20 Fast Fifth Street REGISTER OF WILLS Emporium, 2'ennsy(vania I5834 RECORDER OF DEEDS CLERK OF COURTS (Yfue of f the (Prothonotary February 17, 2009 OFFICE: 814-486-3349 814486-3355 FAX: 814-486-0464 Pamela S. Lee, Prothonotary r•s o York County Court House Monday February 23 2009 3.12 PM CC:? 45 North George Street 2009-F C York, PA 17401 -000311-02 C:) IN RE: Cameron County Case #2008-2143 Joseph C. Adams PLAINTIFF Cs "C7 VS. Katherine C. Adams, DEFENDANT ??•. -sa C:) Dear Ms. Lee, Richard A. Masson, President Judge of Cameron County, has in structed this office to transfer the above-captioned case to York County by Order of the Court dated February 6, 2009. Enclosed, please find certified copies of all documents concerning the divorce. I am notifying the Plaintiff and Defendant and/or their attorneys by copy of this letter. I expect the attorneys active in this case will contact your office to satisfy any filing/recording fees. Please do not hesitate to contact our office if you have any questions or concerns. Your very truly, Mary Grace Olay Prothonotary MGO/das Enclosure cc: John C. Howlett, Jr.; Esquire: Attorney for the Defendant Thomas D. O'Shea, Esquire; Attorney for the Plaintiff (Deputies KATHY LEWIS BETH FARREN DONNA SHAFFER of el ,e-- ark YORK COUNTY PROTHONOTit Page 1 of 1 312712009 2009-FC-000311-15 ADAMS JOSEPH C vs. ADAMS KATHERINE C Action 03/06/2009 DEFTS MOTION TO DISMISS PLTFS PETITION 04824 6 RAISING ADDITIONAL CLAIMS UNDER THE DIVORCE CODE W/CERT OF SERVICE 02/23/2009 PETITION FOR RELATED CLAIMS UNDER DIVORCE 04607 4 CODE W/CERT OF SVC Party Name D- ADAMS KATHERINE C Atty Name HOWETT, JOHN C JR P- ADAMS JOSEPH C O'SHEA, THOMAS D Total Number of Pages : 10 CERTIFIED from the records of Court of Common Pleas of York County, Pennsylvania this37'd of?A.D. 20_ Pamela S. Lee, Prothonotary ,- • IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA JOSEPH C. ADAMS, ) Friday, March s, 2009 12:56 PM Plaintiff ) NO. 2009-FC-000311-15 V. ) KATHERINE C. ADAMS, ) CIVIL ACTION - LAW Defendant ) IN DIVORCE DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S PETITION RAISING ADDITIONAL CLAIMS UNDER THE DIVORCE CODE AND NOW, comes Defendant, Katherine C. Adams, by and through her counsel, (n 7 Howett, Kissinger & Holst, P.C., who hereby files the instant Motion To Dismiss PlaintifF:T GG', Petition Raising Additional Claims Under the Divorce Code, and in support thereof avers c-n follows: 1. Movant is Katherine C. Adams ("Wife"), the above-named Defendant. 2. Respondent is Joseph Adams ("Husband"), the above-named Plaintiff. 3. Movant and Respondent were married on August 8, 1992 in York, Pennsylvania. 4. Husband is a commissioned judge serving on the York County Court of Common Pleas. 5. On October 6, 2008, Husband filed a no-fault divorce action in the Cameron County Court of Common Pleas, docketed at 2008-2143, alleging irretrievable breakdown of the marriage pursuant to Section 3301(c) of the Divorce Code. 6. On October 9, 2008, Husband presented a Separation and Property Agreement to Wife which she executed at his request without legal counsel. Un b"A ?a I 0 Ul tn N Ll • 7. On January 5, 2009, Wife filed a counseled objection to venue in Cameron County, and on February 6, 2009, President Judge Richard A. Masson signed an order (which was then docketed on February 17, 2009) transferring the matter to the York County Court of Common Pleas, where the matter was docketed at 2009-FC-000311-02. On February 23, 2009, Wife filed an Answer and Counterclaim in Divorce, admitting an irretrievable breakdown of the marriage pursuant to Section 3301(c) of the Divorce Code, and raising additional claims for equitable distribution, alimony pendente lite, and counsel fees, as well as continued maintenance of life and health insurance pending entry of a decree in divorce. 9. On that same date, Husband filed a Petition for Related Claims under the Divorce Code in which he raised additional bases for divorce, including Indignities, pursuant to Section 3301(a)(6), and Adultery, pursuant to Section 3301(a)(2). 10. The Divorce Code, 23 Pa.C.S.A. Section 3301(e), clearly provides that: "[i]f grounds for divorce alleged in the complaint or counterclaim are established under subsection (c) or (d), the court shall grant a divorce without requiring a hearing on any other grounds." (Emphasis added). 11. The courts of this Commonwealth have repeatedly held that where grounds for a no-fault divorce have been established, a court is not permitted to consider marital fault. In fact, "...with the passage of no-fault divorce in 1980, `[t]he vindication of private rights or the punishment of matrimonial wrongs' is expressly proscribed by the Divorce Code's legislative findings and intent." Rich v. Acrivos, Pa.Super. , 815 A.2d 1106, 2 Y""4 Qto N fig. ?.?•? a 0 rl 0) s -4 • • 1109 (2003), quoting Perlberger v. Perlberger, 426 Pa.Super. 245, 626 A.2d 1186, 1195 (1993), appeal denied, 536 Pa. 628, 637 A.2d 289 (1993). 12. Here, Husband's Complaint, and Wife's Answer and Counterclaim establish grounds for divorce under the Divorce Code, to wit: irretrievable breakdown of the marriage. 13. Therefore, pursuant to the Divorce Code, and relevant case law, the additional bases for divorce advanced by Husband in his Petition for Related Claims under the Divorce Code are a legal nullity such that said Petition should be dismissed. WHEREFORE, Wife respectfully requests that this Honorable Court dismiss Plaintiff s Petition Raising Additional Claims under the Divorce Code be dismissed. Respectfully submitted, Date: c J . Howett, Jr., E ire HOWETT, KISSINGER & HOLST, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams 3 iw i? 0 I N)? VERIFICATION 1, Katherine C. Adams, hereby swear and affirm that the facts contained in the foregoing Defendant's Motion to Dismiss Plaintiff's Petition Raising Additional Claims Under the Divorce Code are true and correct to the best of my knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Date: March 5, 2009 K=M?&Cmff??- KATHERINE C. ADAMS t?5 ?.?vl l+ll i-j ?"tl t t1,:,t • IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA JOSEPH C. ADAMS, Plaintiff ) V. ) KATHERINE C. ADAMS, ) Defendant ) NO. 2009-FC-000311-02 CIVIL ACTION - LAW IN DIVORCE CERTIFICATE OF SERVICE I, John C. Howett, Jr., Esquire, counsel for Katherine C. Adams, Defendant in the above- captioned action, hereby certify that a true and correct copy of the foregoing Defendant's Motion to Dismiss Plaintiff's Petition Rasing Additional Claims under the Divorce Code was served upon Thomas D. O'Shea, Esquire, counsel for Joseph C. Adams, Plaintiff, via facsimile and by depositing same in the United States mail, first class, on March 5, 2009, addressed as follows: Thomas D. O'Shea, Esquire CGA LAW FIRM 135 North George Street .? F York, PA 17401-1132 r- rw Date: 3 i? /01 C John owett, Jr., Esquir OWETT, KISSINGER & HOLST, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams N C7 c>N cv crt cp 4 1 a kok s t",. • • LAW OFFICES OF HOWETT, KISSINGER & HOLST, P.C. 130 WALNUT STREET POST OFFICE BOX 810 HARRISBURG, PENNSYLVANIA 17108 JOHN C. HOWETT, JR. DONALD T. KISSINGER DARREN J. HOLST REBECCA McCLINCY DARR DEBRA M.SHIMP Legal Assistant Pamela Lee, Prothonotary YORK COUNTY COURTHOUSE 45 North George Street York, PA 17401 Dear Ms. Lee: March 5, 2009 (717) 234-2616 FAX (717) 234-5402 r' C: . Re: Adams v. Adams No. 2009-FC--000311-02 Enclosed for filing in the above-referenced matter please find Defendant's Motion to Dismiss Plaintiff s Petition Raising Additional Claims Under the Divorce Code. Please note that although this is a motion which will require judicial action, we are not requesting that it be set down for a hearing at this time because we have a pending Motion for Recusal of the entire York County bench, which if granted, will require that this motion be held in abeyance until a visiting judge is appointed. If you should have any questions, please do not hesitate to contact our office. Please file the original, time-stamp the copies and return them in the enclosed envelope. Thank you very much for your kind attention to these matters. Sincerely, C? John C. Howett, Jr. JCH/dms Enclosure cc: Terry Baker, Family Court Administrator (w/encl) Thomas D. O'Shea, Esquire (w/encl-via fax & mail) Katherine C. Adams (w/encl) w C? 07 ?s c.n s l VA 's? • JOSEPH C. ADAMS, Plaintiff V. KATHERINE C. ADAMS, Defendant • : IN THE COURT OF COMMON PLEAS : OF YORK COUNTY, PENNSYLVANIA Monday, February 23, 2009 314 PM NO. 2009-FC-000311-15 CIVIL ACTION - LAVN DIVORCE PETITION FOR RELATED CLAIMS UNDER DIVORCE CODE AND NOW, this 3 day of 2009 comes the Plaintiff, Joseph C. Adams, by his attorney, Thomas D. O'Shea, Esquire of CGA Law Firm, respectfully represents as follows: 1. Plaintiff is Joseph C. Adams, who currently resides at 1323 Wicklow Drive, York, Pennsylvania 17404. 2. Defendant is Katherine C. Adams, who currently resides at 2127 Maple Cre?sfl:: rn Blvd., York, Pennsylvania 17406. i- 3. Petitioner and Respondent were married on August 8, 1992, in York, w rM .. Pennsylvania. 4. Plaintiff has heretofore filed a Complaint for Divorce on October 6, 2008. COUNTI Indignities - Section 3301(a)(6) 5. All preceding and succeeding paragraphs are incorporated by reference. 6. The Plaintiff is the innocent and injured spouse. k4 i"a+! 8?'ihup'?lg e``gfl e? Ad rr } N!? a?.Y w 7. The Plaintiff would aver that the Defendant, in violation of her marriage vows and in violation of the laws of the Commonwealth of Pennsylvania, has offered such indignities unto the Plaintiff as to make the Plaintiffs condition intolerable and the Plaintiffs life burdensome. 8. This action is not collusive. 9. The Plaintiff requests your Honorable Court to enter a decree in divorce, divorcing the Plaintiff and the Defendant. WHEREFORE, Plaintiff prays this Honorable Court to grant the relief requested. COUNT II Adultery - Section 3301(a)(2) 10. All preceding and succeeding paragraphs are incorporated by reference. 11. Plaintiff is the innocent and injured spouse. 12. Defendant has committed adultery. 13. Plaintiff requests your Honorable Court to enter a decree in divorce, divorcing Plaintiff and Defendant. WHEREFORE, Plaintiff prays this Honorable Court to grant the relief requested. Respectfully submitted, CGA Law Firm By: Thomas D. O' Shea, Esquire Supreme Court No. 34618 135 North George Street York, Pennsylvania 17401 Tel: (717) 848-4900 V,?, 1.4 ts) r") } ?f vM:? V,A VERIFICATION I, the undersigned, Joseph C. Adams, hereby affirm that the facts contained in the foregoing Petition for Related Claims Under Divorce Code are true and correct to the best of my knowledge, information, and belief. This statement is made subject to the penalties of 18 Pa.C.S. § 4904 relating to unworn falsification to authorities. Dated: Februar Z 3 2DOI COIL Jo h C. Adams p tQ ?w W • • JOSEPH C. ADAMS, IN THE COURT OF COMMON PLEAS Plaintiff OF YORK COUNTY, PENNSYLVANIA V. NO. o? 9 `?- - F7 C7 J? j? ?J KATHERINE C. ADAMS, : CIVIL ACTION -LAW Defendant : DIVORCE CERTIFICATE OF SERVICE I hereby certify that on this date a copy of the foregoing Plaintiff's Preliminary Objections to Defendant's Counterclaim to Complaint in Divorce in the above-captioned matter was served on counsel in the manner indicated below: VIA FIRST CLASS MAIL ADDRESSED AS FOLLOWS: John C. Howett, Jr., Esquire 130 Walnut Street P. O. Box 810 Harrisburg, PA 17108 CGA LAW FIRM Dated: a a3 CIA By: T omas D. O' ea, Esquire r> t„,? ?? 1 F? {n"' }?M \¢g ti j?yy't:TL? Yn?T? i^t.? c t,1?J ?? ?? ?t> ?? ?,,,s? • • IN THE COURT OF COMMOM PLEAS OF YORK COUNTY. PENh1SYLVANIS -'G E ' - JOSEPH C. ADAMS, NO.2009-FC-000311-02 ; Plaintiff - ; ` ' ' n to fir V. CIVIL ACTION - LAW 00 KATHERINE C. ADAMS, DIVORCE Defendant BRIEF IN SUPPORT OF PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S REPLY TO PLAINTIFF'S MOTION TO DISMISS DEFENDANT'S COUNTERCLAIM TO COMPLAINT IN DIVORCE 1. PROCEDURAL HISTORY. Plaintiff (Husband) filed a Complaint for Divorce under section 3301(c) of the Divorce Code in the Court of Common Pleas of Cameron County, Pennsylvania on October 6, 2008. Defendant (Wife) verbally agreed to have the Divorce Complaint filed in a Cameron County. Wife executed an Acceptance of Service of the Divorce Complaint on October 9, 2009. On January 5, 2009, Wife filed a Petition Raising Question of Venue and Seeking Transfer of the Action to York County. On February 6, 2009, Richard A. Masson, President Judge of the Court of Common Pleas of Cameron County entered an Order transferring the case to the Court of 'I-- $-4 a n? rl R? a b 0 1 1 0 Common Pleas of York County. On February 17, 2009, Wife filed and Answer and Counterclaim to the Complaint in Divorce raising the issues of equitable distribution, alimony pendente lite, counsel fees, expenses and costs of suit, and continued maintenance and beneficiary designations of existing policies insuring life and health of Defendant. On February 23, 2009, Husband filed Preliminary Objections to Defendant's Counterclaim. On February 27, 2009, Husband filed a Motion to Dismiss the counterclaim due to the existence of a Separation and Property Settlement Agreement which addressed all of the issues raised in the Counterclaim. On March 6, 2009, Wife filed numerous motions with the Court including a Reply to Plaintiff's Motion to Dismiss Defendant's Counterclaim to Complaint in Divorce. Husband filed Preliminary Objections to Defendant's Reply on March 18, 2009. This brief is in support of the Preliminary Objections. II. QUESTION PRESENTED. Whether Plaintiff's Preliminary Objections to Defendant's Reply should be granted because Defendant's Reply alleges fraud and duress which must be pled with specificity. III. ARGUMENT. Pennsylvania Rule of Civil Procedure 1028(a) states, in pertinent part: Preliminary Objections may be filed by any party to any pleading and are limited to the following grounds: 0 1,0 R <:1 Ul n,? .J • (2) failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter; (3) insufficient specificity in a pleading; Preliminary objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt. League of Women Voters of Pennsylvania v. Commonwealth, 692 A.2d 263 (Pa.Cmwlth. 1997). The test is whether it is clear from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his or her right to relief. Id. The question when faced with a preliminary objection based on the insufficient specificity of a pleading is "whether the [pleading] is sufficiently clear to enable the [responder] to prepare his defense," or "whether the [pleading] informs the [responder] with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense." Rambo v. Greeene, 906 A.2d 1232 (Pa.Super. 2006). Wife's Reply to Husband's Motion to Dismiss alleges that the Separation and Property Settlement Agreement is invalid because it was entered into under fraud and duress.' The Reply fails to state with specificity exactly what the fraud and duress were that caused her to enter into the Agreement. As such, Wife's Reply violates Pennsylvania 'Defendant's Reply to Plaintiff's Motion to Dismiss Defendant's Counterclaim to Complaint in Divorce paragraph 6. j.* ul t? P? "4 Rule of Civil Procedure 1019(b), which specifically requires averments of fraud or mistake to be averred with particularity. To prove fraud, a party must establish, by clear and convincing evidence: (1) a representation, (2) which is material, (3) made falsely with knowledge of its falsity or reckless indifference to its truth (4) with intent to mislead another, (5) justifiable reliance on that misrepresentation, and (6) resulting injury. Bell v. Mayview State Hosp., 853 A.2d 1058 (Pa. Super. 2004). In determining whether fraud has been pled with required particularity, court examines the complaint as a whole. Com. by Zimmerman v. Bell Telephone Co. of Pennsylvania, 121 Pa. Cmwlth 642, 551 A.2d 602 (1988). In order to plead fraud with sufficient particularity, the pleadings must adequately explain the nature of the claim to the opposing party so as to permit the preparation of a defense, and the pleadings must be sufficient to convince the court that the averments are not merely subterfuge. Martin v. Lancaster Battery Co., Inc., 530 Pa. 11, 606 A.2d 4444 (1992). Facts which constitute fraud must be clearly and explicitly spelled out, so the court may judge whether the act or representation complained of was fraudulent. Palone v. Muschetta, 387 Pa. 386, 128 A.2d 37 (1956). In the case sub judice, Wife has not pled with specificity her allegation of fraud or duress as required by the Rules of Civil Procedure. Wife's mere allegation that the agreement was procured by fraud and duress is wholly inadequate. Husband is at a complete loss as to how to defend such a claim when Wife maintained all of the families' financial documents; had the Separation and Property Settlement Agreement and j-A Ail o e ?LLw?:+' 10 3d,i w? N.i. • r accompanying documents on the parties' assets for approximately one week before signing; requested revisions to the agreement; contacted an attorney to represent her but decided against meeting with the attorney because she refused to pay the $250 retainer; and signed the document outside the presence of Husband. Clearly, Wife must provide more detailed information to Husband as to the exact nature of her claim for fraud and duress. It is believed and therefore averred that Wife is attempting subterfuge in an attempt to get Husband to renegotiate the Agreement. At no point in time has Wife ever informed Husband that she was unaware of the parties' respective assets or general financial condition. Moreover, Wife has never complained to Husband that she felt threatened. To the contrary, several weeks after the Agreement was executed Wife complained to Husband that her stocks and bonds had decreased in value and she would now like more money from the house. Since that time Wife continues to complain to Husband that her stocks are down and she wants more money from the house. As a result of Husband refusing to give her more money from the house she has decided to take a new strategy and allege duress and fraud. Moreover, Wife has received the benefit of the Agreement. Wife has accepted one- half of the parties' bank accounts2; Husband has removed Wife from any obligation on the 2 The last account divided by the parties was a joint savings account in which Wife received in excess of $10,000. Wife cashed this check just last month, February 2009. rl"". ?,.4 0 tNol 1 ??'Sd 0 . 1 0 marital residence 3; Husband signed a Spousal Waiver on Wife's new home in which she used funds from the marital assets to acquire and furnish; and the parties have transferred title on marital vehicles4. Based on the foregoing, it is clear that Wife must provide to Husband a more detailed pleading setting forth the exact basis, along with dates and times, as to the duress and fraud alleged in her Reply so that Husband may prepare a defense. WHEREFORE, Husband respectfully requests that this Honorable Court enter an Order granting Plaintiff's Preliminary Objections to Defendant's Reply and striking same as it does not comport with Rules of Civil Procedure and accompanying case law. Respectfully submitted, CGA Law Firm By: > Thomas D. O'Shea, Esquire Supreme Court No. 34618 135 North George Street York, Pennsylvania 17401 Tel.: (717) 848-4900 Counsel for Plaintiff, Joseph C. Adams 3 Under the terms of the Separation and Property Settlement Agreement Husband had 6 months from November 2008 to refinance the property in his name alone. Wife asked Husband to do this much earlier as she wanted to buy a new home in November/December 2008. Husband honored her request and immediately made arrangements with the Mortgagor to have Wife's name removed from any liability on the marital residence even though he was not legally required to do so until April/May 2009. 4 The title to the marital residence and marital vehicle was notarized by a third party. It is uncertain if Wife is claiming if these documents were executed under fraud or duress. C g?hi?+?yq U l i *0 cMT 11"'i CERTIFICATE OF SERVICE I hereby certify that on this date a copy of the foregoing Brief in Support of Plaintiff's Preliminary Objections to Defendant's Reply to Plaintiff's Motion to Dismiss Defendant's Counterclaim to Complaint in Divorce was served on counsel in the manner indicated below: FIRST-CLASS MAIL POSTAGE PREPAID THEREON ADDRESSED AS FOLLOWS: John C. Howett, Jr., Esquire 130 Walnut Street P. O. Box 810 Harrisburg, PA 17108 CGA Law Firm a ^t w 4 C N G __.. u: N rte; .. co By: Thomas D. O'Shea, Esquire Dated: 8119 1 D9 ;.,4 x,11 a,.va !M1.v ?4uF` ;? i 9 1 ? 0 John C. Howett, Jr., Esquire HOWETT, KISSINGER & HOLST, P.C. 130 Walnut Street, P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA JOSEPH C. ADAMS, Plaintiff NO. 2009-FC-000311-02 V. KATHERINE C. ADAMS, Defendant CIVIL ACTION - LAW IN DIVORCE DEFENDANT'S BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS RE: VALIDITY OF AGREEMENT 1. FACTUAL BACKGROUND. Lw C) =?? fw _J Defendant, Katherine C. Adams (hereinafter referred to as "Wife"), and Plaintiff, Joseph C. Adams (hereinafter referred to as "Husband"), were married on August 8, 1992 in York, Pennsylvania. On October 6, 2008, while the parties were still living in the same residence, Husband filed a no-fault divorce action in the Cameron County Court of Common Pleas, docketed at 2008-2143, alleging irretrievable breakdown of the marriage pursuant to Section 3301(c) of the Divorce Code. Three (3) days later, on October 9, 2008, Husband, a commissioned judge with the York County Court of Common Pleas, presented Wife with a Property Settlement Agreement ("Agreement") which purported to resolve all economic issues attendant to the divorce. Wife promptly signed the Agreement without consulting legal counsel. Ln r, • • In December of 2008, Wife consulted and retained the undersigned as counsel, and immediately thereafter objected to venue in Cameron County. On February 6, 2009, the matter was transferred to the York County Court of Common Pleas. Wife filed an Answer and Counterclaim in Divorce on February 23, 2009, admitting an irretrievable breakdown of the marriage pursuant to Section 3301(c) of the Divorce Code, and raising additional claims for equitable distribution, alimony pendente lite, and counsel fees, as well as continued maintenance of life and health insurance pending entry of a decree in divorce. Also on February 23, 2009, Husband filed Preliminary Objections to Wife's Counterclaim to the original divorce complaint, and a Motion to Dismiss Wife's Counterclaim for equitable distribution, alimony pendente lite, counsel fees, and other relief based on his contention that same violates the Agreement, dated October 9, 2008. Wife then filed Preliminary Objections and a Motion to Dismiss Husband's Preliminary Objections to Wife's Counterclaim, which are now both pending before this Honorable Court. IL ISSUES PRESENTED [STATED AFFIRMATIVELY) A. Husband's Preliminary Objections do not comply with the Pennsylvania Rules of Civil Procedure because they do not raise any of the enumerated grounds for the filing of same such that they are a legal nullity which should be stricken from any further consideration. B. The Agreement between the parties is invalid because it was executed by Wife without legal counsel as a result of both fraud and duress. 2 hj 0 1 - 0 III. DISCUSSION. A. Husband's Preliminary Objections do not comply with the Pennsylvania Rules of Civil Procedure because they do not raise any of the enumerated grounds for the filing of same such that they are a legal nullity which should be stricken from any further consideration. Pursuant to Rule 1028(a) of the Pennsylvania Rules of Civil Procedure, as promulgated by the Pennsylvania Supreme Court: Preliminary objections may be filed by any party to any pleading and are limited to the following grounds: (1) lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue or improper form or service of a writ of summons or a complaint; (2) failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter; (3) insufficient specificity in a pleading; (4) legal insufficiency of a pleading (demurrer); (5) lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action; (6) pendency of a prior action or agreement for alternative dispute resolution; (7) failure to exercise or exhaust a statutory remedy, and (8) full, complete and adequate non-statutory remedy at law. Here, quite simply, Husband's Preliminary Objections to Defendant's Counterclaim do not comply with the above-quoted provision of the Pennsylvania Rules of Civil Procedure because they do not raise any of the enumerated grounds for the filing of same. Preliminary objections will only be sustained if they fall into one of the eight categories delineated above, and for that reason, Husband's Preliminary Objections must be dismissed. 3 0 4.? QD th "s ?`kr? • • Further, Husband's claim that the existence of an Agreement defeats Wife's Counterclaim is an affirmative defense which should have been raised in New Matter, pursuant to Pa.R.C.P. 1030, rather than through Preliminary Objections. Because Wife has objected to this procedural defect, Husband's Preliminary Objections to Wife's Counterclaim should be stricken by this Honorable Court. "Where a party erroneously asserts substantive defenses in preliminary objections rather than to raise these defenses by answer or new matter, the failure of the opposing party to file preliminary objections to the defective preliminary objections, raising the erroneous defenses, waives the procedural defect and allows the trial court to rule on the preliminary objections." Preiser v. Rosenswieg, 614 A.2d 303, 305 (Pa. Super. 1992) citing Duqesne Slag Products v. Lench, 490 Pa. 102, 415 A.2d 53 (1980); Button v. Button, 378 Pa.Super. 142, 548 A.2d 316 (1988). In Preiser, unlike the instant matter, preliminary objections to the erroneous preliminary objections were not filed by the opposing party and therefore, the trial court treated the preliminary objections as raising a demurrer, which it sustained. On review, the Superior Court's: ...scope of review [wa]s plenary, the same as that used by the trial court: preliminary objections which result in the dismissal of the suit or the denial of the claim, should be sustained only in cases which are clear and free from doubt. Where any doubt exists as to whether a demurrer should be sustained in must be resolved in favor of overruling the demurrer. Preiser at 305. 4 TQ E • Here, in contrast to the facts in Preiser, Wife did properly file preliminary objections to Husband's erroneous preliminary objections raising the existence of a marital settlement agreement as an affirmative defense. Therefore, Husband's preliminary objections should be denied at this procedural stage. Further, even if Wife had not filed her preliminary objections, under the Superior Court holding in Preiser, if Husband's preliminary objections were to be treated as a demurrer, they would require a denial by this Honorable Court because they fail to meet the standards for grant of a demurrer. "A demurrer should not be sustained if there is any doubt as to whether the [counterclaim] adequately states a claim for relief under any theory of law." Id, citing Eckell v. Wilson, 409 Pa.Super. 132, 597 A.2d 696 (1991). The trial court should "...regard all well- plaeded facts as true and give [Wife] the benefit of all favorable inferences that we could fairly deduce from these facts." Preiser at 305, citing Mazzagatti v. Everinghan, 512 Pa. 266, 516 A.2d 672 (1986). Here, it simply is not "clear and free from doubt," based on the pleadings, that Wife's claims for equitable distribution, support, and medical insurance, as part and parcel of her Counterclaim, do not state a claim for which recovery is possible, and thus if this Honorable Court treats Husband's preliminary objections as a demurrer, they must be denied pursuant to the foregoing legal authorities. 5 s ) 7 • • B. The Agreement between the parties is invalid because it was executed by Wife without legal counsel as a result of both fraud and duress. Marital settlement agreements are governed by traditional contract law principles. Stoner v. Stoner, 819 A.2d 529 (Pa. 2003). However, because parties to any such agreement are, by definition, husband and wife, they stand in a special relationship of "mutual confidence and trust" which requires complete, full and fair disclosure of their financial situation, including all assets, liabilities, and incomes to ensure its validity. Id. citing Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 (1990). If an agreement states that full disclosure has been made, only a rebuttable presumption arises of fairness, which can be overcome with "clear and convincing evidence." Simeone at 167. Further, although there is no requirement that both parties be represented by independent legal counsel, it must be clear from all of the facts and circumstances surrounding the execution of any such agreement that both parties were executing the contract after having had a full and fair opportunity to obtain such counsel. Stoner at 532. In the case sub judice, the Agreement proffered by Husband, an experienced lawyer and jurist, is invalid for lack of full and fair disclosure. The Agreement itself provides that not only did Wife waive any and all entitlement to alimony, alimony pendente lite and/or spousal support (despite the wide disparity in the parties' incomes), but also that she waived all her right, title and interest in the marital residence as well as her right to a portion of any and all of Husband pension plans, 401(k) plans, IRA's, stock options or other retirement or employee benefits plans, i.e Husband got virtually all of the marital assets. At the time that Wife was presented with this document, which Husband insisted that she sign on the spot, Husband did not provide Wife with any documentation establishing the value of the marital residence, his pension with York County, 6 ?kd t"i • C? his pension with the Pennsylvania judiciary, his retirement investments in connection with his previous law firm, nor the value of the parties' other various financial investments. Clearly then, the disclosure was anything but "full and fair." Wife was completely unaware of the value of the parties' assets, and consequently, pursuant to well-established legal authority in this Commonwealth, the Agreement simply is not valid because it lacked the full and fair disclosure required by Simeone and progeny. Furthermore, it has oft been held in this Commonwealth that all contracts, but most especially marital settlement agreements, can be invalidated based on "fraud, misrepresentation or duress." Stoner at 533. Here, not only was the Agreement sorely lacking in the requisite full and fair disclosure of the parties' entire financial picture, perhaps most troubling is the fact that the Agreement at issue was executed by Wife under duress, including threats from her husband, who was not only a family law attorney but is not a family court judge at a point in time when she was completely overwhelmed and distraught with emotion. In this case, the factual circumstances surrounding Wife's hasty execution of the Agreement smack of fraud, misrepresentation and duress. As such, the Agreement sub judice is invalid and cannot be used as the basis for Preliminary Objections to Wife's Counterclaim. 7 N) IV. CONCLUSION. Based on the foregoing, Defendant respectfully requests this Honorable Court enter an order granting Defendant's Preliminary Objections and denying Plaintiff's Preliminary Objections in the above-referenced action. Respectfully submitted, Date: ( p , C C. Howett, Jr., Esquire HOWETT, KISSINGER & HOLST, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams N VERIFICATION I, Katherine C. Adams, hereby swear and affirm that the facts contained in the foregoing Defendant's Brief in Support of Preliminary Objections Re: are true and Validity of Agreement correct to the best of my knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unworn falsification to authorities. Date: 3/13/09 kCA&"Q C,. KATHERINE C. ADAMS 0 R vs) IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA JOSEPH C. ADAMS, Plaintiff V. KATHERINE C. ADAMS, Defendant NO. 2009-FC-000311-02 CIVIL ACTION - LAW IN DIVORCE CERTIFICATE OF SERVICE r? .:.t°. f _. rv co I, John C. Howett, Jr., Esquire, counsel for Katherine C. Adams, Defendant in the above- captioned action, hereby certify that a true and correct copy of the foregoing Defendant's Brief in Support of Preliminary Objections Re: Validity of Agreement was served upon Thomas D. O'Shea, Esquire, counsel for Joseph C. Adams, Plaintiff, by depositing same in the United States mail, first class, on March 13, 2009, addressed as follows: Thomas D. O'Shea, Esquire CGA LAW FIRM 135 North George Street York, PA 17401 ! ff - /UCH ( Date: '4 ohn C. Howett, Jr., Esquire HOWETT, KISSINGER & HOLST, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams N • - LAW OFFICES OF • HOWETT, KISSINGER & HOLST, P.C. 130 WALNUT STREET POST OFFICE BOX 810 HARRISBURG, PENNSYLVANIA 17108 JOHN C. HOWETT, JR. DONALD T. KISSINGER DARREN J. HOLST REBECCA McCLINCY DARR DEBRA M.SHIMP Legal Assistant March 13, 2009 Pamela Lee, Prothonotary YORK COUNTY COURTHOUSE 45 North George Street York, PA 17401 Re: Adams v. Adams No. 2009-FC-000311-02 Dear Ms. Lee: (717) 234-2616 FAX (717) 234-5402 Enclosed for filing, pursuant to Rule 1028(c) of the York County Rules of Court, please find a Brief in Support of Defendant's Preliminary Objections to Plaintiff's Preliminary Objections to Defendant's Counterclaim in the above- referenced matter. Please file the original and time stamp the copies and return them to me in the enclosed self-addressed stamped envelope. If you have any questions, please do not hesitate to contact s. Sincerely, `-? McClincy Darr RMD/dj k Enclosure cc: Thomas D. O'Shea, Esquire (w/encl) Katherine C. Adams (w/encl) 11_s _ -, * ^vF ?i sr c,?`? }} 7Gu? ? :? t ? c ?' -5 0 PD A-rry ???'?o5g9 4h?f ll ? ?q{a Z4 ^q,td{ rl x?$ 4 t,1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOSEPH C. ADAMS, Plaintiff ) V. ) KATHERINE C. ADAMS, ) Defendant ) NO. 2009-2422 CIVIL TERM CIVIL ACTION - LAW IN DIVORCE DEFENDANT'S MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL AND NOW, comes Defendant, Katherine C. Adams, by and through her counsel, Howett, Kissinger & Holst, P.C., who hereby files the instant Motion To Disqualify Plaintiff's Counsel, and in support thereof avers as follows: 1. Movant is Katherine C. Adams ("Wife"), the above-named Defendant. 2. Respondent is Joseph C. Adams ("Husband"), the above-named Plaintiff. 3. Movant and Respondent were married on August 8, 1992 in York, Pennsylvania. 4. Husband is a commissioned judge serving on the York County Court of Common Pleas. 5. Husband is represented by Thomas D. O'Shea, Esquire and the CGA Law Firm. 6. On October 8, 2008, Husband filed a no-fault divorce action in the Cameron County Court of Common Pleas, docketed at 2008-2143, alleging irretrievable breakdown of the marriage pursuant to Section 3301(c) of the Divorce Code. 7. On October 9, 2008, Husband presented a Separation and Property Agreement to Wife drafted by Mr. O'Shea and the CGA Law Firm, which Wife executed without benefit of legal counsel. 8. After retaining counsel, Wife filed an objection to venue in Cameron County on February 5, 2009, which was granted on February 6, 2009, and docketed on February 17, 2009, transferring the matter to the York County Court of Common Pleas, docketed at 2009- FC-000311-02. 9. On March 6, 2009, Wife filed a Motion for Recusal of the entire bench of the York County Court of Common Pleas based on Husband's employment as a commissioned judge serving in that county, which was granted on March 25, 2009, after which the matter was then transferred to this Honorable Court. 10. Wife avers that various members of her immediate family, including herself, have been, or are currently, represented by the CGA law firm. In particular: (a) Mr. O'Shea, and the CGA law firm, are currently representing Wife's father (Husband's Father-in-Law) in ongoing divorce litigation which has spanned the past three (3) years. Mr. O'Shea has indicated that his client, Wife's father, will be a key witness in Husband's case regarding one of the major issues in this case, to wit, the validity of the Marital Settlement Agreement; (b) The CGA law firm previously provided estate planning advice and drafted wills for Wife and Husband, purporting to distribute the parties' joint and individual assets; 2 (c) The CGA firm represented the parties in the purchase of their residence, one of the major assets in dispute in the pending divorce action; (d) Mr. O'Shea represented the parties in their adoption of one of their children and is the godfather of that child; (e) Mr. O'Shea or other employees of the CGA firm prepared or assisted in the preparation of a Separation Agreement, the validity of which is hotly contested in this case such that Mr. O'Shea and or other employee's of the CGA firm will be required, as a "necessary witness" to provide testimony concerning preparation of that document; (f) The CGA law firm presently represents Wife's brother in a pending legal matter; (g) The CGA law firm previously represented Wife's mother, and Wife's maternal grandparents; and (h) Wife and Wife's family members have always used the CGA firm as their attorneys and have always considered the CGA firm as their lawyers. 11. The Pennsylvania Rules of Professional Conduct govern the conduct of attorneys and the firms which employ them. 12. Courts have discretion to disqualify counsel to "...restrain conduct which it feels may develop into a breach of ethics." Maritrans GP Inc v. Pepper, Hamilton, and Scheetz, 602 A.2d 1277, 1284 (Pa. 1992). 3 13. Rule 1.6 of the Pennsylvania Rules of Professional Conduct provides: (a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c). (b) A lawyer shall reveal such information if necessary to comply with the duties stated in Rule 3.3. (c) A lawyer may reveal such information to the extent that the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or, substantial bodily harm; (2) to prevent the client from committing a criminal act that the lawyer believes is likely to result in substantial injury to the financial interests or property of another; (3) to prevent, mitigate or rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services are being or had been used; or (4) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim or disciplinary proceeding against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or (5) to secure legal advice about the lawyer's compliance with these Rules; or (6) to effectuate the sale of a law practice consistent with Rule 1.17. (d) The duty not to reveal information relating to representation of a client continues after the client-lawyer relationship has terminated. 4 14. Rule 1.7 of the Pennsylvania Rules of Professional Conduct provides: (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent. 15. Rule 1.9 of the Pennsylvania Rules of Professional Conduct provides: A lawyer who has formerly represented a client in a matter shall not thereafter: (a) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after a fully disclosure of the circumstances and consultation; or (b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.. 5 16, Rule 3.7 of the Pennsylvania Rules of Professional Conduct provides: (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client. (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9. 17. Here, Wife asserts that all four rules delineated above have been, or likely will be violated, by the continued representation of Husband by Thomas D. O'Shea, Esquire and the CGA law firm. 18. Therefore, pursuant to the Rules of Professional Conduct, and relevant case law, given the considerable depth and breadth of the involvement of the CGA law firm in the lives of the parties' over a course of many years, it would be impossible for Thomas D. O'Shea or the CGA firm to objectively represent Husband in this matter without unfairly prejudicing Wife, and other members of the parties' family, such that Thomas D. O'Shea and the CGA law firm should be disqualified from any further representation of Husband in the instant divorce action. 6 WHEREFORE, Wife respectfully requests that this Honorable Court enter an Order disqualifying Plaintiff's Counsel, Tom O'Shea, Esquire, and the CGA Law Firm which employs him. Date: Y?--? ` Respectfully submitted, L Jo owett, Jr., Esquire -iL HOWETT, KISSINGER & HOLST, P.C. 130 Walnut Street / P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams 7 VERIFICATION I, Katherine C. Adams, hereby swear and affirm that the facts contained in the foregoing Defendant's Motion to Disqualify Plaintiff's Counsel are true and correct to the best of my knowledge, information and belief and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Date: 4/22/09 O? KATHERINE C. ADAMS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOSEPH C. ADAMS, ) Plaintiff ) V. ) KATHERINE C. ADAMS, ) Defendant ) NO. 2009-2422 CIVIL TERM CIVIL ACTION - LAW IN DIVORCE CERTIFICATE OF SERVICE I, John C. Howett, Jr., Esquire, counsel for Katherine C. Adams, Defendant in the above- captioned action, hereby certify that a true and correct copy of the foregoing Defendant's Motion to Disqualify Plaintiff's Counsel was served upon Thomas D. O'Shea, Esquire, counsel for Plaintiff, Joseph C. Adams, via facsimile and by depositing same in the United States mail, first class, on April 22, 2009, addressed as follows: Thomas D. O'Shea, Esquire CGA LAW FIRM 135 North George Street York, PA 17401- 132 Date: I `2•'?-I. l r V\?, C. Howett, Jr., Esqui e HOWETT, KISSINGER & HOLST, P.C. 130 Walnut Street P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams ?1 nt r,e 1 if I1 ??} ?S;J (;' 114 tr trti'. •?? John C. Howett, Jr., Esquire HOWETT, KISSINGER & HOLST, P.C. 130 Walnut Street, P.O. Box 810 Harrisburg, PA 17108 Telephone: (717) 234-2616 Counsel for Defendant, Katherine C. Adams APR 27 20096) NO JUDGE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOSEPH C. ADAMS, Plaintiff ) V. ) KATHERINE C. ADAMS, ) Defendant ) NO. 2009-2422 CIVIL TERM CIVIL ACTION - LAW IN DIVORCE RULE TO SHOW CAUSE RE. MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL AND NOW, this day of , 2009, upon consideration of Defendant's Motion to Disqualify Plaintiff's Counsel, a Rule is hereby entered upon Plaintiff, Joseph C. Adams, to show cause, if any, why the relief requested should not be granted. Rule returnable in writing within twenty (20) days from the date of service hereof. J. Distributes' ?John C. Howett, Jr., Esq., P.O. Box 810, Harrisburg, PA 17108, (717) 234-2616 .,f homas D. O'Shea, Esq., 135 North George St., York, PA 17401-1132, (717) 848-4900 CC)F t£S rn'a%LL slAilaq "-?/r'1 ?0 :6 klV I- AN 6001 3Hil? "! ; C -0,31H IF I IN THE COURT OF COMMOM PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOSEPH C. ADAMS, Plaintiff V. KATHERINE C. ADAMS, Defendant NO. 2009-2422 CIVIL TERM CIVIL ACTION - LAW DIVORCE PLAINTIFF'S ANSWER AND NEW MATTER TO DEFENDANT'S MOTION TO DISQUALIFY PLAINTIFF'S COUNSEL AND NOW, comes Plaintiff, Joseph C. Adams, by and through his counsel, Thomas D. O'Shea, CGA Law Firm, who hereby files the within Answer to Defendant's Motion to Disqualify Plaintiff's Counsel, and in support thereof answers as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. T r 6. Admitted. By way of further answer, Defendant verbally agreed to have Husband file the divorce action in Cameron County. Defendant then reneged on her agreement by filing an objection to venue on February 6, 2009. After Defendant had the matter removed from Cameron County to York County, Defendant then requested that the entire York County Bench recuse themselves thereby necessitating another transfer to this Honorable Court. 7. Denied. It is denied that Husband presented Wife with a Separation and Property Settlement Agreement on October 9, 2008. To the contrary, Husband presented the document to Wife on or about October 3, 2008. It is also denied that the Separation and Property Settlement Agreement was drafted by Mr. O'Shea and the CGA Law Firm. To the contrary, Husband prepared the Agreement on his own. Husband was previously a shareholder in CGA Law Firm and simply requested a paralegal at the law firm to provide him with a form, which Husband used as the starting point for drafting the Agreement. Husband never used the services of the law firm in drafting the Agreement other than to simply provide a form that Husband used to use when Husband was a shareholder in the law firm. By way of further answer, Husband learned on or about September 30, 2008 that Wife was continuing with an extramarital affair even though Wife previously indicated that the affair had terminated several months earlier. As a result of learning that Wife was continuing to have the affair, the parties mutually agreed to divorce and settle their property and custody issues amicably. After reviewing their assets and reaching a verbal agreement, Husband prepared and presented the Separation and Property Settlement Agreement to Wife on or about Friday, October 3, 2008. Husband and Wife reviewed the Agreement over the weekend and both agreed to modifications of the Agreement that were requested by Wife. Husband made the requested revisions on Monday, October 6, 2008. On the same day, Husband executed the revised Agreement and presented it to Wife. Sometime during this time period, Wife contacted a law firm to review the Agreement and asked that information, but ultimately did not meet with legal counsel because the firm requested a $250.00 consultation fee which Wife did not wish to pay. Wife executed the Agreement outside the presence of Husband on Thursday, October 9, 2008 and then provided the signed Agreement to Husband. 8. Admitted. By way of further answer, in late December 2008, counsel for Defendant informed counsel for Husband that Husband should agree to make revisions to the Agreement or suffer the embarrassment of having this matter brought back to York County where Husband is a sitting judge. When Husband refused to acquiesce to opposing counsel's threats, Defendant sought the transfer of this matter to York only to immediately request that the entire York County bench recuse themselves necessitating that the matter be transferred to this Honorable Court. 9. Admitted. By way of further answer see paragraph 8. 10. (a) Admitted and denied. It is admitted that CGA Law Firm is currently representing Wife's father in his divorce action. It is denied that Mr. O'Shea indicated that Wife's father will be a key witness in Husband's case. To the contrary, Husband's counsel has no plan to call Wife's father as a witness in this case. Wife's father was not involved in the preparation of the Property Settlement Agreement nor did he witness the Agreement. By way of further answer, even if Wife's father were to be called as a witness in the case, it would not create a conflict under the Rules of Professional Conduct because the two cases are completely unrelated. (b) Admitted in part and denied in Part. It is admitted that CGA Law Firm previously provided Wills for both Husband and Wife. It is denied that estate planning advice was given by any member of the law firm other than Husband himself. At that time, Husband was a shareholder practicing law with CGA Law Firm. By way of further answer, Husband and Wife previously had wills prepared by another law firm several years prior to having children. While Husband was employed at CGA Law Firm Husband and Wife had the law firm prepare new Wills to address issues of concern regarding their children. All other aspects of the original Wills remained the same, including the distribution of assets to the other spouse. No confidential information was given to the law firm with respect to assets for estate planning purposes. Both Husband and Wife's Wills were virtually identical leaving everything to each other and creating a simple trust for the minor children. It is denied that this in any way creates a conflict warranting recusal of Attorney O'Shea. The fact that two representations involve similar or related facts is not, in itself, sufficient to warrant a finding of substantial relationship, so as to disqualify counsel. INA Underwriters Insurance Co. v. Nalabotsky, 594 F.Supp. 1199, 1206 (1984); Commonwealth Insurance Co. v. Graphix Hot Line, 803 F.Supp 1200, 1204 (1992). (c) Admitted. By way of further answer, CGA Law Firm prepared the settlement sheet documents for the purchase of the parties' marital residence. It was done at the request of Husband while he was an attorney with CGA Law Firm. It is denied that this creates a conflict under the Rules of Professional Conduct. (d) Admitted. By way of further answer, this does not create a conflict under the Rules of Professional Conduct. (e) Denied. Neither Attorney O'Shea nor other employees of CGA Law Firm prepared or assisted in the preparation of the Separation Agreement. Therefore, no testimony from any employee of CGA will be necessary. To the contrary, Husband prepared the Agreement himself without the assistance of any employee of CGA Law Firm. The only connection to CGA Law Firm is that prior to the preparation of the document, Husband requested that CGA Law Firm provide him with the form that Husband used to use when he was an attorney with the law firm and drafted property settlement agreements for client. This was a basic form similar to many forms found in form books by attorneys. CGA Law Firm made no changes to the form on behalf of Husband. (f) Admitted. It is admitted that CGA Law Firm represents Wife's brother in an employment law case. It is denied that this in any way creates a conflict under the Rules of Professional Conduct. (g) Admitted. It is admitted that Husband while he was employed at CGA gratuitously prepared various simple legal documents (i.e. Power of Attorney) for Wife's mother and her grandparents. It is denied that this creates a conflict under the Rules of Professional Conduct. (h) Denied. It is denied that Wife and Wife's family members have always used CGA Law Firm as their attorneys and have always considered CGA Law Firm as their attorneys. To the contrary, the maternal side of Wife's family has had virtually always used and considered the law firm of Stock and Leader as their legal counsel. Most recently, Wife's mother used Stock and Leader to handle her late husband's estate. Wife's father has consistently used the Philadelphia Law Firm of Ballard Spahr as his legal counsel. In addition, Father has used other law firms in the York area to handle legal matters for him, including the Law Firm of Kagen, MacDonald, and France. 11. Paragraph 11 states a legal conclusion to which no response is required. 12. Paragraph 12 states a legal conclusion to which no response is required. By way of further answer, the case to which Wife cites involves a law firm representation of a former client's competitor. The law firm was attempting to use knowledge and information the firm obtained from its former client against its former client in an effort to get customers of the former client to use its new client. No such situation exists in the instant case. There is absolutely no information that was gained in CGA's prior representation which could be used against Wife. Once again, as stated by Wife in her motion, the key issue in this case is the enforceability of the Separation Agreement which was prepared by Husband. 13. Paragraph 13 states a legal conclusion to which no response is required. To the extent a response may be required, it is denied that Rule 1.6 of the Pennsylvania Rules of Professional Conduct is violated. 14. Paragraph 14 states a legal conclusion to which no response is required. To the extent a response may be required it is denied that Rule 1.7 of the Pennsylvania Rules of Professional Conduct is violated. 15. Paragraph 15 states a legal conclusion to which no response is required. To the extent a response may be required; it is denied that Rule 1.9 of the Pennsylvania Rules of Professional Conduct is violated. 16. Paragraph 16 states a legal conclusion to which no response is required. To the extent a response may be required; it is denied that Rule 3.7 of the Pennsylvania Rules of Professional Conduct is violated. 17. Denied. It is denied that any Rule of the Professional Rules of Conduct is or would be violated by Attorney O'Shea or CGA's continued representation of Husband. 18. Denied. The Rules of Professional Conduct nor the relevant case law warrant the removal of Attorney O'Shea or CGA Law Firm from representing Husband. To the contrary, Wife's Motion to disqualify Husband's counsel is another attempt to delay, create additional expense and embarrass Husband. Despite knowing the averments in their motion since the filing of the complaint in October 2008, Wife and her counsel filed the Motion to Disqualify Husband's counsel over six months later, after numerous pleadings have been filed, and on the day before the scheduled deposition of Wife by Husband's counsel. WHEREFORE, Husband respectfully requests that this Honorable Court enter an Order dismissing Defendant's Motion to Disqualify Plaintiff's Counsel and award counsel fees to Husband for the preparation and defense of said Motion. l NEW MATTER 19. Paragraphs 1 through 18 are herein incorporated by reference. 20. Waiver is a valid basis for the denial of a motion to disqualify. Such a finding is justified when a former client was concededly aware of the conflict but failed to raise an objection promptly when they have the opportunity. INA Underwriters Insurance Co. v. Nalabotsky, 594 F.Supp. 1199, (1984); Commonwealth Insurance Co. v. Graphix Hot Line, 803 F.Supp 1200 (1992). 21. Wife failed to object promptly at the first available opportunity to Attorney O' Shea's representation of Husband. 22. Clearly, Wife was aware of Attorney O'Shea and CGA Law Firm's representation of Husband at the time of the filing of the Divorce Complaint on October 8, 2008. 23. Wife did not file her motion until over six months after Attorney O'Shea entered his appearance on behalf of Husband. 24. Since that time, Wife has filed a voluminous number of petitions and motions in this matter which have been thoroughly researched and briefed by Husband's counsel. 25. Wife has had numerous opportunities to object to Attorney O'Shea's representation of Husband, including, but not limited to, one appearance in court before the Honorable John Thompson, Judge of the Court of Common Pleas of York County. 26. Attorney O'Shea has handled all aspects of this case and has engaged in substantial preparation. 27. It would be unfairly prejudicial to Husband to be required to obtain new counsel at this stage. 28. Wife has filed this motion for tactical reasons in that said motion was filed the day before Wife's scheduled disposition. 29. Husband's counsel agreed to postpone Wife's scheduled deposition (originally scheduled for April 25, 2009) because Husband's counsel was informed that there was a death in Wife's counsel's family. Husband's counsel has tried to reschedule the deposition of Wife, but Wife's counsel refuses to cooperate in the scheduling of Wife's deposition citing her Motion to Disqualify Husband's counsel as a reason not to proceed with the deposition. This clearly shows the delay tactic that is being used by Wife and her counsel. 30. The Courts have consistently denied motions to disqualify counsel which are used for tactical purposes. Id. 31. Accordingly, Wife has waived any conflict of interest. WHEREFORE, Husband respectfully requests that this Honorable Court enter an Order dismissing Defendant's Motion to Disqualify Plaintiff's Counsel and award counsel fees to Husband for the preparation and defense of said Motion. Respectfully submitted, CGA Law Firm By: omas D. O' Shea, Esquire Supreme Court No. 34618 135 North George Street York, Pennsylvania 17401 Tel.: (717) 848-4900 VERIFICATION I, the undersigned, Joseph C. Adams, hereby affirm that the facts contained in the foregoing Answer and New Matter to Defendant's Motion to Disqualify Plaintiffs Counsel are true and correct to the best of my knowledge, information, and belief. This statement is made subject to the penalties of 18 Pa.C.S. § 4904 relating to unworn falsification to authorities. Dated: m i 1 , 2009 s C. Adams {00130629/1} a • CERTIFICATE OF SERVICE I hereby certify that on this date a copy of the foregoing Answer and New Matter to Defendant's Motion to Disqualify Plaintiffs Counsel was served on counsel in the manner indicated below: FIRST-CLASS MAIL POSTAGE PREPAID THEREON ADDRESSED AS FOLLOWS: John C. Howett, Jr., Esquire 130 Walnut Street P. O. Box 810 Harrisburg, PA 17108 CGA Law Firm By: omas D. O'Shea, Esquire Dated: -6 ` 12Au A 2099 MAY 14 FM 2* Q 7 JOSEPH C. ADAMS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. KATHERINE C. ADAMS NO. 2009 - 2422 CIVIL TERM ORDER OF COURT AND NOW, this 291ff day of MAY, 2009, after review of Defendant's Motion to Disqualify Plaintiffs Counsel and Plaintiffs Response thereto, a hearing thereon is scheduled for do0 Courtroom # 3, Carlisle, Pa. 17013. ZJohn C. Howett, Jr., Esquire -Thomas D. O'Shea, Esquire :sld 24:5 SCL ( P, "es /ym* L I43M Edward E. Guido, J. -fir, JOSEPH C. ADAMS, Plaintiff v. KATHERINE C. ADAMS, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 09-2422 CIVIL 'TERM CIVIL ACTION - LAW IN DIVORCE ORDER OF COURT AND NOW, this 20th day of July, 2009, we enter the following scheduling order: 1. All discovery,. including depositions, shall be completed by October 26, 2009. 2. Hearing on the issue of the validity of the agreement shall be held before this Court on November 9, 2009, commencing at 9:30 a.m. 3. A pretrial conference shall be held before this Court on October 5, 2009, at 1:30 p.m. ~homas D. O'Shea, Esquire Attorney for Plaintiff +yybhn C. Howett, Jr., Esquire Attorney for Defendant J srs ~lL~€~-~~} i ~~~ OF 7NE ~^~ r`'i ~`~~~ ZQ~i9 J~.lL 22 ~~110~ 58 i~F~~~ ~~'~..~la~,ii;z JOSEPH C. ADAMS, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V• NO. 09-2422 CIVIL TERM KATHERINE C. ADAMS, CIVIL ACTION - LAW Defendant IN DIVORCE ORDER OF COURT AND NOW, this 20th day of July, 2009, we will hear argument on all outstanding preliminary objections and motions on August 4, 2009, at 4:00 p.m. By the _ Court; f`~~ ,~ ~_.. __ Edward E. Guido, J. ~.Komas D. O'Shea, Esquire Attorney for Plaintiff J n C. Howett, Jr., Esquire ttorney for Defendant srs Rt~~ i ICF 4F TNF , ,~;Ta~~~}TA~Y 2009 .l~SL 22 A~ 10~ 5 8 IN THE COURT OF COMMOM PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOSEPH C. ADAMS, Plaintiff v. KATHERINE C. ADAMS, Defendant N0.2009-2422 CIVIL TERM CIVIL ACTION -LAW DIVORCE STIPULATION REGARDING SETTLEMENT OF ECONOMIC ISSUES Both parties hereby agree and stipulate that they have entered into a private agreement to settle all of their economic issues in the above-captioned divorce case. Both parties hereby withdraw the motions pending before the Court in this case. The preliminary conference scheduled for Tuesday, Augi.~st 4, 2009 at 4:00 p.m. may be cancelled. The status conference scheduled for October 5, 2009, at 1:30 p.m. may be cancelled. The hearing scheduled for November 9, 2009 at 9:30 a.m. maybe cancelled. Respectfully submitted, HOWETT, KISSINGER & HOLST, P.C. CGA Law Firm By: '~t~ (. P11~tilJ~~ . Howett, Jr., Esquire 130 Walnut Street ~ P. O. Box 810 Harrisburg, PA 17108 Tel.: (717) 234-2616 By:~ /l. /~I~ ~omas D. O'Shea, Esquire ~p/®~ Supreme Court No. 34618 135 North George Street York, Pennsylvania 17401 Tel.: (717) 848-4900 ~rk t~ .~ ~ i~~`~r' ,.,, ,~. r ~j, ~ ~_:;~. ;~~. A~ AUK , , 2009 3 JUDGE GUIDO IN THE-COURT OF COMMOM PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOSEPH C. ADAMS, Plaintiff vi. KATHERINE C. ADAMS, Defendant N0.2009-2422 CIVIL TERM CIVIL ACTION -LAW DIVORCE ORDER AND NO~V, this ~ ~~.day of , 2009, the Court acknowled es that the g parties entered into a private agreement to settle all of their economic issues. The following court proceedings shall be cancelled: The preliminary conference scheduled for Tuesday, August 4, 2009 at 4:00 p.m.; the status conference scheduled for October 5, 2009, at 1:30 p.m.; and the hearing scheduled for November 9, 2009 at 9:30 a.m. maybe cancelled. Y THE CO T: J. Distribution: " John C. Howett, Jr., Esquire, P.O. x 810, Harrisburg, PA 17108 (717) 234-2616 ~1'Somas D. O'Shea, Esquire, 135 N. eorge Street, York, PA 17401 (717) 848-4900 w~ ,, ~~~~ ~~~r~ ~ ~ ~#~ ~~ C t~ i_~ar~~l'Lk IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Joseph C. Adams, Plaintiff VS. Katherine C. Adams, Defendant 2009 - 2422 Civil Term Civil Action - Law Divorce AFFIDAVIT OF CONSENT 1. A complaint in divorce under §3301(c) of the Divorce Code was filed on October 6, 2008. 2. The marriage of plaintiff and defendant is irretrievably broken and ninety days have elapsed from the date of filing and service of the Complaint. 3. 1 consent to the entry of a final decree of divorce after service of notice of intention to request entry of the decree. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. DATED: 1 Z 10 Adams, Plaintiff rrnc v rn-n =m a= r r? Cl) r -um - U) Z' ' 0 o° r- "?© - o - C v C:) -n Cl ,c rv C) --aM 00 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Joseph C. Adams, Plaintiff VS. Katherine C. Adams, Defendant 2009 - 2422 Civil Term Civil Action - Law Divorce WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER §3301(C) OF THE DIVORCE CODE 1. 1 consent to the entry of a final decree of divorce without notice. 2. 1 understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. 3. 1 understand that I will not be divorced until a divorce decree is entered by the Court and that a copy of the decree will be sent to me immediately after it is filed with the prothonotary. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. DATED: 1 Z 10 d4-a- o . Adams, Plaintiff C-') C= '_, C= ZM C ?rn ? CA3 u ° r- X C Xit 5;c= ry co IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Joseph C. Adams, Plaintiff VS. Katherine C. Adams, Defendant 2009 - 2422 Civil Term Civil Action - Law Divorce AFFIDAVIT OF CONSENT 1. A complaint in divorce under §3301(c) of the Divorce Code was filed on October 6, 2008. 2. The marriage of plaintiff and defendant is irretrievably broken and ninety days have elapsed from the date of filing and service of the Complaint. 3. 1 consent to the entry of a final decree of divorce after service of notice of intention to request entry of the decree. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. DATED: J 1 - 10 Kath rive C. Adams, Defendant c rrtCD Z ?o cM-^a W C? r- Z: C ?F CC) S' r'a CD ?'T' t 00 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Joseph C. Adams, Plaintiff VS. Katherine C. Adams, Defendant 2009 - 2422 Civil Term Civil Action - Law Divorce WAIVER OF NOTICE OF INTENTION TO REQUEST ENTRY OF A DIVORCE DECREE UNDER §3301(C) OF THE DIVORCE CODE 1. 1 consent to the entry of a final decree of divorce without notice. 2. 1 understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. 3. 1 understand that I will not be divorced until a divorce decree is entered by the Court and that a copy of the decree will be sent to me immediately after it is filed with the prothonotary. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. DATED: Katherine C. Adams, e -? r-- I r - :o -<x' w r-, ?? , 0 (*.,y a x C-D-n co JOSEPH C. ADAMS, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. CIVIL DIVISION KATHERINE C. ADAMS, Defendant ; NO, 2009-2422 CIVIL TERM PRAECIPE TO TRANSMIT RECORD To the Prothonotary: Transmit the record, together with the following information, to the court for entry of a divorce decree: 1. Ground for divorce: Irretrievable breakdown under § (3301(c)) ' XW)0X „ of the Divorce Code. (Strike out inapplicable section.) 2. Date and manner of service of the complaint: October 9, 2008 by Acceptance of Service. 3. Complete either paragraph (a) or (b). (a) Date of execution of the affidavit of consent required by § 3301(c) of the Divorce code: by plaintiff December 1, 2010 ;by defendant December 1, 2010 (b) (1) Date of execution of the affidavit required by § 3301(d) of the Divorce Code: N/A (2) Date of filing and service of the plaintiff's § 3301(d) affidavit upon the respondent opposing party: N/A 4. Related claims pending: None. All economic issues resolved by Separation and Property Settlement Agreement dated October 9, 2008 and Addendum to Agreement dated August 4, 2009 5. Complete either (a) or (b) (a) Date and manner of service of the notice of intention to file praecipe to transmit record, a copy of which is attached: N/A (b) Date plaintiff's Waiver of Notice was filed with the Prothonotary: On or about December 6, 2010 ?P'1?/l??I?$N3d Date defendant's Waiver of Notice was filed with the Prothonotary: .QN[)00 ONIV1839W On or about December 6, 2010 60 :? Nd C- 330 0102 e `1'?? O Q? 3N? M ?-- Attorney for Plaintiff/Defendant t X01.4-40`(13-113 r I hDr?as D. 0 5heo,, (-Squ ire JOSEPH C. ADAMS V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KATHERINE C. ADAMS NO 2009-2422 CIVIL TERM DIVORCE DECREE AND NOW, , it is ordered and decreed that JOSEPH C. ADAMS , plaintiff, and KATHERINE C. ADAMS , defendant, are divorced from the bonds of matrimony. Any existing spousal support order shall hereafter be deemed an order for alimony pendente lite if any economic claims remain pending. The court retains jurisdiction of any claims raised by the parties to this action for which a final order has not yet been entered. Those claims are as follows: (If no claims remain indicate "None.") None By the Attest: J. Prothonotary «./Q?io - C??.. (; - Jas I???s ?y ? ??